When should a defence lawyer who wants to get off the record be forced to continue? The Ontario Court of Appeal released an interesting decision dealing with this question a few weeks ago. Mr. Short was charged with first-degree murder. About six weeks before the trial was to begin, his lawyer, who had not yet been paid, brought an application to get off the record. He gave three reasons for wanting to be removed. First, since he had not been paid, there was a possibility that he would have to sue his client to obtain the funds owed to him. Second, due to his client’s non-payment, he said he had been unable to do certain things that should have been done in preparation for the trial. Finally, he stated: “There are communications between Mr. Short and I that have led to loss of confidence issues that I cannot disclose to you, but I can tell you as an officer of the court ethically that my position is I cannot go forward ethically as a result of some of those communications.”
The Crown opposed the application and argued that trial counsel’s allusion to ethical concerns was a distraction and the real reason he wanted to get off the record was that he had not been paid. The Supreme Court’s 2010 decision in Cunningham held that courts have a discretion to require counsel to continue to act in cases of non-payment of fees, and that this discretion should more often be exercised where, as here, the trial was fast approaching.
The trial judge agreed with the Crown’s position and forced trial counsel to stay on. The accused was subsequently convicted, but his conviction was thrown out on appeal. Justice Doherty, writing for the unanimous Court of Appeal, stated:
“I do not agree with the Crown’s submission in this court that trial counsel’s reference to “ethical reasons” related exclusively to his concern that he may be in a conflict of interest with his client if he was required to sue his client for non-payment of fees. … [T]rial counsel made it abundantly clear that there had been a complete breakdown in the client-solicitor relationship and that for that reason he could not continue to act for the appellant. The trial judge was required to accept that representation and remove trial counsel from the record. By requiring counsel to remain on the record, the appellant was left to be defended on a first degree murder charge, not by counsel fully and unequivocally committed to his defence, but by counsel who had announced to the court that he could not, in good conscience, continue to act for the appellant. The trial judge’s ruling rendered the appearance of the trial unfair and resulted in a miscarriage of justice, requiring a new trial.”
The Court of Appeal’s decision is an important affirmation of the principle that a court is not entitled to peer behind counsel’s assertion of an ethical conflict or breakdown, and must trust defence counsel as officers of the court to be honest and forthright in this regard. This may seem like a rule created to benefit lawyers who want to ensure they get paid, but there are in fact good reasons why defence counsel should not be questioned about such conflicts. To take one example, defence counsel is not ethically permitted to assist in eliciting evidence that he knows for certain is designed to mislead the court. So if a client tells his lawyer that he plans to lie on the stand, but also demands to testify, then defence counsel is left in an impossible position and must get off the record. If, in doing so, he were required to explain why he had to get off the record, he would effectively be conscripted into the prosecution, forced to prejudice his client’s own defence.