“Court can order lawyers to work for free,”* April 9, 2010, Lawyers Weekly. View the article.
In this case a criminal defence lawyer (Cunningham) was employed by Yukon Legal Aid to represent an accused charged with sexual offences against a young child. The accused failed to update his financial information as required by Legal Aid to maintain his legal aid certificate and his funding was suspended. Legal Aid told the accused that Cunningham was no longer authorized to represent him and Cunningham brought an application to the court to withdraw as counsel of record due to the suspended funding (indicating she would continue if funding were reinstated). The Territorial Court refused her application and the matter wound its way up to the Supreme Court of Canada which held that the Territorial court had the jurisdiction to refuse to grant a request to withdraw and had the authority to require counsel to continue to represent an accused when the reason for withdrawal was non-payment of fees.
As noted in a recent Lawyers Weekly article, “Court can order lawyers to work for free.”* the high court held that “lawyers representing an accused do not have an unfettered right to drop a case already scheduled for a hearing – at short notice to the court and the Crown- simply because their clients can’t, or won’t pay them.” While the decision means that courts can refuse applications from lawyers to withdraw as counsel on the grounds of non-payment of fees the high court was careful to stress that this power “should be exercised exceedingly sparingly” and “only when necessary to prevent serious harm to the administration of justice.” The court also noted that, “Ordering counsel to work for free is not a decision that should be made lightly,” and further “Though criminal defence counsel may be in the best position to assess the financial risk…only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence Bar and, in particular legal aid lawyers.”
Vancouver criminal lawyer Gregory DelBigio, counsel for the intervener Canadian Bar Association, underscored these provisos as key to the impact of the decision. As quoted in the Lawyers Weekly, Mr. DelBigio remarked: “The vast majority of Canadian lawyers conduct themselves in accordance with the highest ethical standards and it is not anticipated that the decision will result in any significant changes in the way which lawyers practice,” and further “However, lawyers will now need to ensure that fee-related issues that interfere with a lawyer’s willingness to continue to act as counsel are brought to the court’s attention in a timely manner.”
*The article originally appeared in the April 9, 2010 issue of The Lawyers Weekly published by LexisNexis Canada Inc. – View article
Read R. v. Cunningham.