Duty to the Courts

The lawyer’s Duty to the Courts: Overview

Compiled by Eric B. Appleby:

The lawyer is an officer of the courts. A lawyer when acting for a client has “a prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other licence which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer” – see Queen v. O’Connell (1844), 7 I.L.R. 261, at page 313.

In General

The case law and the codes refer to the duty of courtesy and respect owed by a lawyer to the courts. One purpose of this duty is to enhance public confidence in the administration of justice. See Professional Conduct for Lawyers and Judges by Beverley G. Smith at chapter 1, para. 35 and Legal Ethics by Mark M. Orkin at page 32. But at the same time a lawyer has a duty to resist any attempt to influence him in the execution of his duties to the client. (See the lawyer’s duty to the client in this legal Encyclopedia).

Duty to the court re representation of a client

In the case of R. v. Creasser (D.D.) (1996), 187 A.R. 279; 127 W.A.C. 279 (C.A.), the headnote stated: An unpaid defence counsel was denied leave to withdraw from the case on the eve of a scheduled two week trial – The Alberta Court of Appeal stated that independent of his obligations to his client, a lawyer who has accepted a general retainer from an accused and who has then gone on record for him before the trial court, is obligated to the court to continue to represent him unless and until, after notice to the client, the court permits him to withdraw for cause or by reason of the accused’s consent to the termination of his employment. Cause includes unhappy differences that make it impossible for the lawyer to defend, but does not include nonpayment of fees.

Duty to the court to facilitate proceedings

In the case of Ashmore et al. v. Corporation of Lloyd’s (1992), 145 N.R. 344 (H.L.), the House of Lords stated that the parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. – See paragraph 25.

In the case of Northern Meat Packers Ltd. and Restigouche Abattoir Ltd. v. Bank of Montreal; Bank of Montreal v. Bourgoin (1984), 52 N.B.R.(2d) 196; 137 A.P.R. 196 (T.D.), the New Brunswick Court of Queen’s Bench, Trial Division, rejected the notion that in our adversary system a defendant may wait and allow a plaintiff to do nothing until sufficient time has lapsed to apply for dismissal for want of prosecution – The court adopted the view that litigation and the thrust of the Rules of Court are grounded on a mutual obligation to expedite trial and decision – See paragraphs 60 to 62.

In the case of Mireau v. Canada et al. (1995), 128 Sask.R. 142; 85 W.A.C. 142 (C.A.), Mireau’s appeal was dismissed for want of prosecution after failing to serve and file an appeal book and factum within the time required by court order – Mireau’s solicitor did nothing – He did not file the documents, nor apply to the court to withdraw as solicitor of record – The Saskatchewan Court of Appeal stated that when counsel goes on record for an appellant he thereby incurs an obligation to keep the matter moving by complying with the rules respecting the requisition of a transcript of the evidence (where applicable) but also any directions that the court may make. … Since those directions were ignored without any application to vary the time limits … [the solicitor] failed to fulfil his professional obligation to this court. … where an appellant decides to take no further steps counsel should obtain instructions to immediately abandon the appeal, thereby saving unnecessary applications and consequent costs. – See paragraphs 4 to 5.

Duty to the court by a lawyer not to abuse position

In the case of Silver Jack Mines Ltd. v. McCarthy (1983), 51 N.B.R.(2d) 160; 134 A.P.R. 160 (T.D.), two lawyers were shareholders of a company whose assets were being wrongfully held as security by another shareholder – Under the guise of claiming a debt owed to the company by the shareholder the lawyers issued a writ of capias and had the shareholder arrested – The sole purpose of issuing the writ was to remove the shareholder from his property to allow the lawyers and others to enter the shareholder’s land and seize the company assets – The New Brunswick Court of Queen’s Bench held that the lawyers’ conduct was both distasteful and an abuse of their position as members of the judiciary – See paragraphs 32, 38.

Duty to the court by a lawyer of full disclosure

In the case of Comear, Re (1986), 77 N.S.R.(2d) 57; 191 A.P.R. 57 (T.D.), as relevant case law, the Nova Scotia Supreme Court, Trial Division, referred to the duty of counsel to disclose an appeal decision that varied a trial decision upon which counsel’s proposition or submission was based, if that decision was known to counsel – See paragraph 44.

In the case of Transport Trailer Sales v. Robinson (2001), 147 O.A.C. 268 (Div. Ct.), the defendant/appellant subpoenaed two witnesses who did not appear at trial – Counsel for the plaintiff had spoken to both witnesses asking them about the conduct money they had received and advising them that their attendance could not be compelled because they had not been paid sufficient conduct money – The Ontario Divisional Court stated that as an officer of the court, plaintiff’s counsel had an obligation to reveal that information to the trial judge – It appeared that the evidence of the two witnesses could materially corroborate the defendant’s case and if the trial judge had been aware of counsel’s discussion with the witnesses in the context of a self-represented party, he would likely have afforded the defendant an opportunity to present that evidence – The court ordered a new trial.

In the case of Myers v. Elman, [1939] All E.R. 484 (H.L.), the House of Lords stated at p. 491: “If the defendants are guilty of the alleged frauds, it is hardly to be expected that they will make adequate affidavits without considerable pressure. However guilty they may be, an honourable solicitor is perfectly justified in acting for them and doing his very best in their interests, with, however, the important qualification that he is not entitled to assist them in any way in dishonourable conduct in the course of the proceedings. The swearing of an untrue affidavit of documents is perhaps the most obvious example of conduct which his solicitor cannot knowingly permit. He must assist and advise his client as to the latter’s bounden duty in that matter, and, if the client should persist in omitting relevant documents from his affidavit, it seems to be plain that the solicitor should decline to act for him any further. He cannot properly, still less can he consistently with his duty to the court, prepare and place upon the file a perjured affidavit.”

Duty to the court of a lawyer not to obstruct justice

In the case of R. v. Goddard (D.) (1995), 206 N.R. 69; 193 A.R. 47; 135 W.A.C. 47 (S.C.C.), Goddard was charged with a criminal offence – Goddard asked that the case be heard and resisted the Crown’s application for an adjournment – Goddard then informed the court that the Crown was not in a position to produce witnesses and asked for a dismissal – Subsequently, the Crown charged Goddard with obstruction and requested a new trial – The Crown submitted that Goddard knew where the witnesses were and that they were available – The Crown also claimed that Goddard had undertaken to inform the police officers when they would be needed as witnesses – The Supreme Court of Canada, in affirming Goddard’s acquittal, observed that while the conduct was not criminal, it would have been unethical if engaged in by a lawyer – See paragraph 2.

In the case of R. v. Sweezey (G.G.) (1987), 63 Nfld. & P.E.I.R. 308; 194 A.P.R. 308 (Nfld. T.D.), the Newfoundland Supreme Court, Trial Division, in sentencing the accused lawyer to 18 months in prison for wilfully attempting to obstruct justice, stated that a lawyer who attempts to obstruct justice by wilfully counseling a witness to be forgetful and evasive not only commits an offence contrary to s. 127 of the Criminal Code but also breaches his solemn duty as an officer of the court to uphold the course of justice – See paragraphs 6 to 8.

Duty to the court by a lawyer to present all relevant jurisprudence

In the case of R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C. 109 (C.A.), in a breathalyzer case, accused’s counsel failed to cite relevant decisions of the Court of Appeal and Supreme Court of Canada which were against him – The Alberta Court of Appeal stated that it is counsel’s duty to look for and cite to the court all relevant authority, whether it is for or against him, as has been well known for 70 years – See paragraphs 17 to 19

Duty to the court by a lawyer where the accused admits to crime

In the case of R. v. Li (C.M.) (1993), 36 B.C.A.C. 181; 58 W.A.C. 181 (C.A.), an accused charged with robbery admitted to his lawyer that he did it – The British Columbia Court of Appeal stated that the common understanding was that the lawyer could not call the accused or any other person to testify that the accused did not do it – Although the lawyer could not set up defences inconsistent with the admission, he could test the proof of the case in every proper way (e.g., challenging the sufficiency of identification evidence) – See paragraphs 57 to 74.

Duty to the court respecting out-of-court discussions with judges

In the case of R. v. Mid Valley Tractor Sales Ltd. and Scott (1993), 140 N.B.R.(2d) 46; 358 A.P.R. 46 (T.D.), the court stated at paras. 13 and 14: [13] “There are a number of cases to the effect that the practice of counsel going to see judges is in general an undesirable one . Some of the cases are referred to in A Book for Judges by The Hon. J.O. Wilson, published by the Canadian Judicial Council in 1980, beginning at pages 52 and 64. One of the cases cited in A Book for Judges includes the following observation: It appears that during the course of the trial the learned trial judge called counsel into his chambers to discuss certain aspects of the trial as the trial progressed. It appears also that this was done in the office of the learned trial judge and in the absence of the respondent. This is a practice that must be discouraged. It is a cardinal principle of our jurisprudence that a trial, whether with or without a jury, is a public trial except in certain statutory cases, and that the members of the jury, the accused and the public are entitled to free access to the law courts and the trial and to see and to hear the totality of the full drama of the trial. The jury, accused and the public are entitled to see and hear the examination and cross- examination of every witness called to testify, all objections made by counsel and to see and hear the rulings made by the trial judge. It is of great importance not only that justice should be done substantially but that it must appear to be done, and it cannot appear to be done where the learned trial judge has many conferences with counsel in his chambers. There may be exceptions but, if so the substance of the discussion in his chambers should be disclosed in open court and recorded, and the assent of counsel involved should likewise appear on the records. Branca, J.A., in R. v. Johnson, [1977] 1 B.C.L.R. 289, at p. 304.

[14] In my view that quotation applies generally to all court procedures, not just to the conduct of criminal trials. In short, out- of-court discussions between counsel and a judge relating to a case before that judge are in my opinion usually inappropriate because justice should not only be done, but should manifestly and undoubtedly be seen to be done and nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256; [1923] All E.R. Rep. 233, at p. 234.

Liability of lawyer for costs for improper conduct

In the case of Rahall (Bankrupt), Re (2003), 349 A.R. 263 (Q.B.), a bankrupt’s lawyer (Charnock) mislead the court in order to obtain his client’s discharge – After becoming aware of this and after the former bankruptcy trustee declined to take action, the court appointed the trustee’s former counsel (Tkachuk) as amicus curiae to bring an application to set aside the discharge – The discharge was set aside – Tkachuk applied for costs against Charnock – The Alberta Court of Queen’s Bench ordered Charnock to personally pay Tkachuk costs of $15,000 plus taxable disbursements – Charnock represented that his client had done all he was required to do to obtain the discharge when he knew or ought to have known that there were many outstanding matters yet to be addressed – Further, he told the court hearing the discharge application that the lead creditor had been given notice, when that was not the case.

In the case of Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. et al. (2001), 293 A.R. 366; 257 W.A.C. 366 (C.A.), Campbell was the sole shareholder of the plaintiff company – Tupper, junior counsel for the defendants, obtained a consent from Campbell’s wife to disclose expert reports exchanged in divorce proceedings which had previously been filed in the courts … and were a matter of public record – Mrs. Campbell’s solicitor made the divorce action files available to Tupper – Tupper took copies of three documents and examinations for discovery, none of which had been filed in the court – Tupper and the defendants’ senior counsel, Trawick, attempted to use the wrongfully obtained documents – A Chambers judge held that Tupper and Trawick were guilty of positive misconduct, but declined to find them in contempt – The Chambers judge declined to remove the solicitors from the record, but ordered that Tupper, Trawick and the defendants were jointly and severally liable to pay the plaintiff costs fixed at $50,000, plus disbursements – The Alberta Court of Appeal affirmed the decision.

Duty of a lawyer to disclose to the court all relevant documents

In the case of Harper v. Harper (1979), 27 N.R. 554 (S.C.C.), the Supreme Court of Canada stated that a lawyer must disclose relevant documents of which he has knowledge (in answer to a notice to produce) or refuse to continue acting for his client.

Duty of a lawyer respecting undertakings

In the case of Bernard v. Elliott (1984), 62 N.S.R.(2d) 287; 136 A.P.R. 287 (Co. Ct.), the court stated at paras. 13 and 14: [13] “Judge Bartlett then asked Mr. Kaiser, of counsel for the appellant, whether he was prepared to assure the court ‘as an officer of the court’ that his client would not permit anyone to use marijuana or have it in the home while the matter was before the court. Mr. Kaiser very properly replied that he was able to assure the court ‘insofar as any lawyer can on behalf of his client’. The court pressed the matter and Mr. Kaiser gave a personal assurance.

[14] It was improper for the court to ask for such an assurance and it was improper for counsel to give one, although difficult to avoid in the circumstance. A barrister ought not to have any personal interest in a case other than his fee and it is better if that is fixed and paid in advance. That is the argument against contingent fees and although that rule has been changed in some jurisdictions, because of substantial countervailing factors, it is still a sound principle. A lawyer ought to be able to advise his client without any motive for self-deception, and he ought to be able to act in court without any motive other than to serve his client and to serve the administration of justice. He is not permitted to vouch personally either for the facts in support of his client’s case or for the truthfulness and reliability of the witnesses he puts forward. He is not permitted to vouch for the reliability of his client or, for example, to go bail for the client personally. All of this is supported not only by the ethics and tradition of the profession and the practice of the courts but in many instances it has been laid down by the courts or by a professional body. See, for example, the Code of Professional Conduct, of the Canadian Bar Association, Chapter V, paragraph seven, etc. This document, while flawed, has much to say on the question.”