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: December 6, 2018
Cite as: 2018 SKLSPC 11
Classification: Manner of Withdrawal, Rule 3.7-8 and 3.7-9
Practice Area: Criminal Law
Ethics Committee Ruling:
Lawyer X represented Client A who was facing criminal charges. Lawyer X reviewed Client A’s file and determined that they did not see a defence to the charge and therefore there was no merit in Legal Aid proceeding with a trial.
Client A did not want to enter a guilty plea but rather wanted to conduct a trial.
In a letter to Client A, Lawyer X advised that because Client A wanted to proceed to trial, Client A was refusing Lawyer X’s professional advice to plead guilty, and accordingly Client A had terminated the lawyer-client relationship. Lawyer X further advised Client A that he was not being denied Legal Aid services, and that if Client A was prepared to resolve their charges through a guilty plea, Lawyer X was prepared to represent them for sentencing. Lawyer X also noted that Client A was able to proceed to trial without the assistance of Legal Aid.
The Ethics Committee determined that Lawyer X has mischaracterized the termination of the solicitor/client relationship. Where a client instructs the lawyer to do something against the lawyer’s advice, it does not mean that the client has terminated the solicitor-client relationship. In this situation, as the lawyer was not prepared to take the matter to trial, and the client wanted to proceed to trial, the lawyer was effectively withdrawing their services from the client, and thereby terminating the solicitor-client relationship. The member was terminating services to the client and should not be wording their letter to say that the client was terminating the relationship. The Ethics Committee takes issue with the statement Lawyer X made in their letter to Client A that the client is not being denied legal services.
Drafting the letter in this way may also affect the accused’s right to counsel. The characterization that the client, not the lawyer, is terminating the solicitor/client relationship appears to be intended to hinder the client’s ability to obtain court appointed counsel.
The Committee has strong concerns that this type of conduct has the ability to create a situation where the lawyer could be offside s. 606 of the Canadian Criminal Code and Section 5.1-8 of the Code of Professional Conduct, as the accused, when asked if the guilty plea is voluntary, may state that they are only doing so because their lawyer will otherwise withdraw. Further, the Committee wishes to reiterate that lawyers have a duty under Rule 3.7-8 to avoid prejudice to the client when withdrawing on a file.
The Committee is not criticizing Lawyer X for making the legal decision that they would not run a trial based on the merits of this case; that is their prerogative. However, because the client says that they want to run a trial and the lawyer does not want to, does not mean that the client is firing the lawyer.