R. v. Cunningham, 2010 SCC 10, deals with counsel’s right to withdraw on a matter for non-payment of fees and other reasons for withdrawal.
The headnote:
The Territorial Court had jurisdiction to refuse to grant C’s request to withdraw. A court has the authority to require counsel to continue to represent an accused when the reason for withdrawal is non‑payment of fees, but the authority must be exercised sparingly and only when necessary to prevent serious harm to the administration of justice. Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice. Likewise, in the case of statutory courts, the authority to control their process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law.
Disclosure of non‑payment of fees in cases where it is unrelated to the merits and will not prejudice an accused does not attract the protection of the solicitor‑client privilege, and the remote possibility that a judge will inappropriately attempt to elicit privileged information in hearing the application to withdraw does not justify leaving the decision to withdraw exclusively to counsel. As well, the oversight of a lawyer’s withdrawal does not fall exclusively to the law societies. Both the courts and the law societies play different, but important, roles in regulating withdrawal: the courts prevent harm to the administration of justice and the law societies discipline lawyers whose conduct falls below professional standards. These roles are not mutually exclusive; rather, they are necessary to ensure the effective regulation of the profession and protect the process of the court. While counsel’s personal or professional interests may be in tension with an individual client’s interest, courts must presume that lawyers act ethically. Where the court requires counsel to continue to represent an accused, counsel must do so competently and diligently. Both the integrity of the profession and the administration of justice require nothing less. Lastly, a Rowbotham order might be relevant to the court’s residual discretion to refuse withdrawal, but it cannot operate as a replacement for it.
The court’s exercise of discretion to decide counsel’s application for withdrawal should be guided by the following principles. If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, the court should allow the withdrawal. If timing is an issue, the court is entitled to enquire into counsel’s reasons. In either the case of ethical reasons or non‑payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor‑client privilege. If withdrawal is sought for an ethical reason, the court must grant withdrawal; if it is sought because of non‑payment of legal fees, the court may exercise its discretion to refuse counsel’s request if it determines, after weighing all the relevant factors, that allowing withdrawal would cause serious harm to the administration of justice.
Refusing an application to withdraw is a coercive and conclusive order with respect to the lawyer and, in that context, an order in the nature of certiorari should be given its normal scope and can be allowed where there is an error of jurisdiction or an error of law on the face of the record.
In this case, the Supreme Court of the Yukon Territory correctly concluded that the Territorial Court had the jurisdiction to refuse to grant counsel’s request to withdraw. The question of whether this case satisfies the high threshold that must be met to refuse leave to withdraw is now moot and the record before this Court does not provide information on several of the relevant factors. It is, therefore, not clear whether the circumstances of this case would, after full analysis of the relevant considerations, justify a refusal of leave to withdraw.