Annalise Acorn: Jumping Ship: R v Cunningham and the Lawyer’s Right to Withdraw

Annalise Acorn’s case comment on the Supreme Court’s decision in R v Cunningham on the lawyer’s right to withdraw came out recently.  From the introduction:

1  It has never been in the best traditions of the criminal bar to quit a client over money. Having gone on the record as counsel for an accused, the lawyer is, as a matter of professional dignity, expected to have sorted out financial matters with the client in advance, and it is seen as unseemly for the lawyer to abandon the client over non-payment. Some Canadian codes of conduct clearly prohibit the criminal defence lawyer from withdrawing due to non-payment of fees where withdrawal would potentially prejudice the client.1 Other codes make it clear that such withdrawal is frowned upon.2 The codes of conduct send a cautionary message to the lawyer: “Don’t go on the record as counsel for an accused unless you’re prepared to see them through to the end of the trial, whether they pay you or not.” The lawyer’s overriding obligations to ensure access to justice and to provide services pro bono to indigent clients support the absence of an unfettered right to withdraw for non-payment of fees.

2  That said, however, prior to the Supreme Court of Canada’s recent decision in R v Cunningham,3 the weight of authority suggested that it was ultimately the lawyer’s decision whether or not to withdraw. As Gavin MacKenzie put it, “[b]ecause, in Canada, the legal relationship between lawyers and their clients is essentially contractual; the question whether a lawyer should withdraw is to be determined by the lawyer, not by the court before whom the lawyer is appearing.”4

The full article can be found in the (2011) 44:2 UBC L Rev 381.

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