The Defence Lawyer

Ethical Issues

Compiled by Eric B. Appleby:

Overview

Unlike a prosecutor, a criminal defence lawyer has a client. Such a lawyer-client relationship is subject to the usual rights, duties and liabilities. The defence lawyer must be aware of the potential conflict between his duty to his client and the defence lawyer’s duty to the court and the justice system. Unlike the burden of proof in a civil trial, in a criminal trial the accused is presumed innocent.

Extent or limits of duty

In the case of R. v. Dunn (P.I.) (1993), 143 A.R. 238 (Prov. Ct.), the headnote stated: Extent or limits of duty – The Alberta Provincial Court discussed the duty of defence counsel in criminal court – The court stated that an accused’s fundamental freedoms do not prevent counsel from advising a client to plead guilty once it is clear that the Crown’s evidence is overwhelming – Counsel’s duty to a client is balanced against his other four duties, namely, his duty of integrity to himself, his duty to deal fairly with opposing counsel and the court, and his duty not to abuse the trust of society which designed a criminal justice system to give every possible presumption of innocence and fairness to accused persons – See paragraph 5.

Termination of relationship

In the case of R. v. Huber (E.E.) (2004), 192 B.C.A.C. 75; 315 W.A.C. 75 (C.A.), about Termination of relationship – Withdrawal by lawyer – General – The British Columbia Court of Appeal, per Rowles, J.A., stated that absent a finding that a lawyer’s application to withdraw had an ulterior purpose, a trial judge had no discretion to deny the application – Whatever the reasons might be for counsel seeking to withdraw, the court’s scope of inquiry was circumscribed by issues that lay properly within the domain of counsel and client – Inquiries must end at the point at which unhappy differences or privilege were cited – Once the client consented to the withdrawal or had discharged counsel, the bench could intervene no further than attempting to urge reconciliation between counsel and client – See paragraphs 6 to 10, 21 to 25, 56 to 81.

In the case of A.L., Re (2003), 345 A.R. 201 (Q.B.), about Withdrawal by lawyer – Criminal cases – The Alberta Court of Queen’s Bench stated that in Alberta, a lawyer of record in criminal proceedings had to obtain the court’s leave to withdraw as counsel – The leave application allowed the court to determine any contractual, ethical, or administrative implications of a late withdrawal – It could explore whether the situation was one of termination by the client or by the lawyer – The court might also have a responsibility, within the strictures imposed by solicitor- client privilege, to address the issue of whether a lawyer was entitled in the specific circumstances to request permission to withdraw – Moreover, even if the termination was clearly by the client, a court appearance allowed the court to inform the client that the termination of legal services did not necessarily entitle the client to an adjournment to prepare for self-representation or obtain a new lawyer – Finally, even if the termination was clearly by the client and an adjournment was required, the appearance enabled the court to advise the client of the need to move quickly to obtain a new lawyer and, if required, provide information about how to contact Legal Aid or other legal assistance – See paragraphs 20 to 24.

Conflict of interest

Beverley G. Smith in his text Professional Conduct for Lawyers and Judges states in chapter 8, para. 63 “The general rule that the defence lawyer should represent only one of two or more co-accused is not an absolute one”. In the case of R. v. Qiang (C.G.), [2001] O.T.C. 114 (Sup. Ct.), the court stated at para. 58: [58] “It is important to keep in mind, however, that none of this is problematic in the absence of an actual or potential conflict of interest. As Doherty J.A. observed in R. v. Widdifield (supra) at 172 there can be no absolute bar against the joint representation of co-accused. In the same case, Doherty J.A. considered the rationale underlying the conflict of interest rule as follows (at 171- 2): A lawyer can render effective assistance only when that lawyer gives the accused’s cause the undivided loyalty which is a prerequisite to proper legal representation. Within the limits imposed by legal and ethical constraints, the lawyer must champion the accused’s cause without regard to counsel’s personal interests or the interests of anyone else. This duty of undivided loyalty not only serves and protects the client, but is essential to the maintenance of the overall integrity of the justice system. While there can be no absolute bar against the joint representation of co-accused, joint representation puts counsel’s obligation of undivided loyalty to each client at risk. In attempting to serve two masters, counsel may do a disservice to the interests of one or both. Counsel who undertake the joint representation of co-accused assume the heavy burden of ensuring that they are not placed in a position of representing interests which are or may be in conflict. Where counsel fails to perform that duty and undertakes the representation of interests which do or may conflict, the court will order counsel removed from the record.

In the case of R. v. Silvini (1991), 50 O.A.C. 376 (C.A.), about Conflict of interests – Acting for jointly tried co-accused – The Ontario Court of Appeal stated that it is generally recognized that a lawyer representing more than one accused in a joint criminal trial is potentially in a position of conflict … joint representation may lead the jury to link the co-accused together… In a case of joint representation of conflicting interests, defence counsel’s basic duty of undivided loyalty and effective assistance is jeopardized and his performance may be adversely affected. That is, he may refrain from doing certain things for one client by reason of his concern that his action might adversely affect his other client. – See paragraphs 11 to 12.

In the case of R. v. Phalen (D.F.) (1997), 160 N.S.R.(2d) 371; 473 A.P.R. 371 (C.A.), about Conflict of interest – Acting for jointly charged or tried co-accused – The accused and a friend came to the assistance of another friend who was attacked by the complainant – The complainant struck the accused a slight blow on the chest – The accused smashed the complainant in the face twice – The accused and his friends were charged with assault – They were tried together and were represented by the same lawyer – The trial judge acquitted the friends and convicted the accused – The accused alleged conflict of interest by his lawyer representing all three accused – The Nova Scotia Court of Appeal rejected the ground of appeal – There was no evidence of actual conflict and the evidence pointed to a joint position that all three accused acted in self-defence in reaction to the unprovoked attack of the complainant – See paragraphs 18 to 23.

Plea bargaining

The professional conduct of both prosecutor and defence lawyer comes under scrutiny in the matter of plea bargaining. See Professional Conduct for Lawyers and Judges by Beverley G. Smith, chapter 8, paras. 64 to 79.

In the case of R. v. Randhile (S.R.) (1997), 209 A.R. 209; 160 W.A.C. 209 (C.A.), about Plea bargaining – Two accused were charged with second degree murder following the death of a homeowner during a late night break-in – They pleaded not guilty – After four days of trial, including 16 witnesses and the entry of 12 exhibits, the accused pleaded guilty (one to manslaughter, the other to second degree murder) – The trial judge sentenced the accused to terms of imprisonment one year longer than jointly recommended – The Alberta Court of Appeal held that a sentencing judge was not bound by a joint submission, although it afforded important guidance – The sentencing discretion must be exercised by the sentencing judge – See paragraphs 11 to 14.

In the case of R. v. Halvorsen (G.O.) (1994), 50 B.C.A.C. 87; 82 W.A.C. 87 (C.A.), about Plea bargaining – The accused was convicted of robbery and a firearm offence, on two apparent guilty pleas entered by counsel – He later contended a plea bargain existed, whereby if bail was denied, he would plead guilty to robbery if the Crown stayed the firearm charge – It was conceded that the accused never intended to plead guilty but for the deal – The British Columbia Court of Appeal held that there was no valid guilty plea to the firearm charge, as the plea was not an informed one where the accused was not aware of the plea’s effect and consequences – The court found a miscarriage of justice insofar as a conviction was entered on the firearm charge and directed an acquittal on that count.

In the case of R. v. Burlingham (T.W.) (1995), 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161 (S.C.C.), the Supreme Court of Canada discussed the content of an accused’s right to counsel during the plea bargaining process – See paragraphs 12 to 23 – The court stated, inter alia, that s. 10(b) of the Charter … mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to accused’s counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel. It is consequently a constitutional infringement to place such an offer directly to an accused, especially (as in the present appeal) when the police coercively leave it open only for the short period of time during which they know defence counsel to be unavailable – See paragraph 21.

In the case of R. v. Howell (D.M.) (1996), 203 N.R. 247; 155 N.S.R.(2d) 58; 457 A.P.R. 58 (S.C.C.), about Plea bargaining – The accused was sentenced to 12 years’ imprisonment for conspiracy to traffic in a narcotic – During without prejudice plea bargain negotiations, the Crown had offered to make representations for a sentence of six years’ imprisonment if the accused pleaded guilty – The accused rejected the offer, but now sought to rely on it to reduce his sentence – The Nova Scotia Court of Appeal stated that the previous plea bargain offer, once unaccepted, became irrelevant in sentencing the accused – The trial judge was to sentence the accused solely on the basis of the facts before the court – The Supreme Court of Canada dismissed the appeal for the reasons stated by the Court of Appeal.

In the case of R. v. Pauchay (J.) (2003), 231 Sask.R. 234 (Q.B.), about Plea bargaining – The issue arose as to whether a trial judge could significantly increase a sentence agreed to by the Crown and defence where that judge had refused to expunge a guilty plea made on the basis of that sentencing agreement – The Saskatchewan Court of Queen’s Bench stated that, absent exceptional circumstances, the trial judge must either expunge the plea or uphold in principle the sentencing agreement – See paragraphs 2 and 3.