A Yukon Legal Aid lawyer is stuck with her client despite his failure to pay legal fees, the Supreme Court of Canada has decided.
The court’s judgment, released on March 22, examined the murky question of whether a lawyer can dump their client during the legal process. While a client can decide to leave a lawyer at any time, a lawyer doesn’t have that freedom.
The court decided a lawyer should be able to leave their client for ethical reasons, but it wasn’t so generous when the reason for withdrawal is a non-payment of fees.
A request for withdrawal should only be refused if the court “determines, after weighing all the relevant factors, that allowing withdrawal would cause serious harm to the administration of justice,” says the judgment.
In the case of Jennie Cunningham, a Yukon Legal Aid lawyer, the court sidestepped the question of whether the withdrawal of her services would harm the administration of justice. That’s because the appeal that brought the case to Ottawa relates to the jurisdiction of the Yukon’s Territorial Court, which refused Cunningham’s request for withdrawal.
Cunningham had several heavy-hitting intervenors on her side during the case, which was heard last November, including the Law Society of British Columbia, the Law Society of Yukon, the Canadian Bar Association and the Criminal Lawyers’ Association for Ontario.
Four years ago, Cunningham was representing a man charged with sexually assaulting a child. Cunningham’s legal fees were being paid by the Yukon Legal Services Society, also known as Legal Aid, which helps cover legal fees for people who can’t afford them.
In May 2006, Morgan was told he had to update some financial information to have his funding continue. He failed to do that and his funding was stopped. This was within a month of his preliminary inquiry. Legal Aid also told him that Cunningham was no longer on the hook to cover him.
That’s when she applied at the Territorial Court for withdrawal. She indicated that she would take Morgan back if his funding was renewed.
The Yukon territorial court refused her request for several reasons; the seriousness of the charges, the risk of the child’s memory waning if the trial was delayed, the complexity of the legal arguments in the trial and the prejudice against the man because he was charged with being a sex offender.
Justice Leigh Gower agreed with that decision when the case came to him at the Supreme Court of the Yukon. But during the next appeal, the Court of Appeal decided the withdrawal should have been granted.
The Appeal Court argued the law society should regulate lawyers and the decision could come into conflict with a law society disciplinary decision. It also argued that forcing a lawyer to represent a client isn’t fair to that client because their best interest no longer jive.
The case was appealed on the basis that the decision was in the territorial court’s jurisdiction and wasn’t in the hands of the law society. The Supreme Court agreed with that appeal.
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