Choosing and Refusing Clients

• Author: David Layton; Michel Proulx
• Pages: 71-96

71

CHAPTER 2

CHOOSING AND

REFUSING CLIENTS

A. INTRODUCTION

There are several distinct aspects to the question of lawyers’ choosing

and refusing clients. First, there are those facets of client selection that

should normally raise no substantial ethical dilemmas. For example, it

may be that refusing a prospective client is completely uncontroversial

because the suggested ret ainer would manifestly involve a breach of the

rules of professional conduct. Second, and more contentious and dif-

f‌icult, is the issue as to whether a lawyer enjoys a general discretion to

reject a potential client. The classic presentation of the problem lies in

the case of the unpopular or repugn ant client. As we will see, Canadian

rules of professional conduct do not preclude a lawyer from exercis-

ing some discretion in deciding whether to accept a case. However, it

remains to determine exactly how this discretion should be exercised.

Third, where a lawyer properly decides not to accept a retainer, certain

duties are nevertheless owed to the individual whose matter has not

been taken on. Prime among these are the duties to assist in f‌inding

counsel and to maintain the prospective client’s conf‌identiality.

B. INSTANCES WHERE COUNSEL CANNOT ACT

On occasion, a lawyer must reject an avai lable retainer, usually because

the representation would effectively undermine the proper basis of a

ETHICS AND CRIMINAL LAW72

client-lawyer relationship or otherwise require the lawyer to engage in

unethical conduct. Accordingly, a lawyer is required to refuse a case in

the following circumstances:

1) Conf‌lict of interest: A lawyer cannot act if the brief would involve

labouring under an irresolvable conf‌lict of interest.1

2) Potential to be a witness: Though this falls within the prohibition

against conf‌lict of interest, it is worth emphasizing that a lawyer

should reject a retainer that raises a real spectre of him becoming a

witness.2

3) Lack of competence: It is unacceptable for a lawyer to act in a case

where she is unable to provide competent representation.3

4) Continuing retainer with another lawyer: A client may approach

counsel asking for representation while already represented by an-

other lawyer in the sa me matter. The new client cannot be accepted

unless the pre-existing retainer has been terminated.4

5) Illegal purpose: The rules of professional conduct prohibit a lawyer

from taking on any case that would require a breach of the law.5

1) Due Diligence to Ensure Retainer Does Not Involve

Illegality

A lawyer must not knowingly assist a client, or anyone else for that

matter, in dishonesty, crime, fraud, or illegality.6 “Knowledge,” in this

context, means not only actual awareness of wrongdoing but wilful

blindness and recklessness as well.7 Furthermore, a lawyer must be

alert not to become the unwitting dupe of an unscrupulous client and

must if harbouring a suspicion as to whether the retainer involves any

impropriety make reasonable inqui ries to obtain information about the

1 See, generally, Chapter 6.

2 See Chapter 6, Sect ion L.

3 Alta, Sask r 2.01(2) (commentar y); Que s 3.01.01; BC, Man, Ont, NS, NL r 3.1-2,

commentarie s 5–6; NB ch 2, commenta ries 3 and 6; CBA Code ch II, commen-

taries 3 a nd 6.

4 See Chapter 11, Section O(1).

5 Alta r 2.02(10); Sask r 2.02(7); BC, Man, Ont, NS, N L r 3.2-7; Que s 4.02.01(g);

CBA Code ch III, comment ary 7.

6 See rules cited, ibid. See a lso Wood v Schaeffer, 2013 SCC 71 at para 109, LeBel

& Cromwell JJ, dis senting but not on this point [Wood].

7 Ont r 3.2-7, commentary 1.