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The Law Society’s Ethics Committee recently released the following Ethics Ruling as guidance for the profession. For your convenience, we’ve listed the ruling below but it can also be found in our Ethics Rulings Database.
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Date: February 21, 2020
Cite as: 2020 SKLSPC 1
Classification: Conflicts of Interest, Rules 2.1-1 and 3.4; Withdrawal, Rule 3.7; Advocacy, Rule 5.1-1; Undertakings, Rules 5.1-6 and 7.2-11
Practice Area: Criminal Law
The Law Society received a Request for Ruling with regard to the general ethical obligations of legal counsel regarding plea agreements. Specifically, the Committee was asked to consider the following questions: At what stage do plea agreements become binding on legal counsel; and What steps should counsel take if an accused wants to back away from an agreement?
The Committee noted the extent to which plea agreements are binding on legal counsel has been addressed several times by the Courts. The Committee emphasizes the decision of the Supreme Court in R. v. Nixon, 2011 SCC 34,  2 SCR 566, which stated such agreements are similar to an undertaking and while not enforceable in the same way, honouring them is not only an “ethical imperative”, but a “practical necessity.” In light of the Court rulings, the Committee did not think that it would be appropriate or necessary to supplement or modify these legal conclusions through the Ethics Ruling process. The Committee further considered that the most pressing ethical consideration in such circumstances is whether counsel is required to withdraw from continued representation of the client. The Committee considered the various factors which may be at play in the solicitor/client relationship when such instructions are received, including counsel’s obligations as an officer of the court. The Committee concluded that, in almost every case where the client maintains their wish to resile from a plea agreement and no further agreement with opposing counsel can be reached, counsel should withdraw from representing the client. Circumstances in which counsel could continue to effectively represent the client before the court are extremely limited. Should counsel wish to continue representing the client, they are advised to consider case law, and consult the Code – particularly the sections regarding optional and obligatory withdrawal (ss. 3.7-1 and 3.7-7, respectively). In making such an assessment, counsel must not only consider their duty to the client, but also their duty as an officer of the court. Counsel may be well-advised to consult with the Law Society regarding their specific circumstances, as well as senior counsel unconnected to the specific file. In all instances where such an assessment is made, counsel should be cognizant of the overarching ethical and practical need, consistent with Nixon, to generally honour plea agreements.