Choosing and Refusing Clients
| Author | David Layton; Michel Proulx |
| Pages | 71-96 |
71
CHA PTER 2
CHOOSING AND
REFUSING CLIENTS
A. INTRODUCTION
There are several distinct aspects to the question of lawyers’ choosing
and refusing clients. Fir st, there are those facets of client selection th at
should normally raise no substantial ethical di lemmas. For example, it
may be that refusi ng 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 l awyer enjoys a general discretion to
reject a potential client. The classic present ation 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 ca se. 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 a mong these are the duties to assist in finding
counsel and to mainta in 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 t he proper basis of a
ETHICS AND CR IMINAL LAW72
client-lawyer relationship or otherw ise require the lawyer to engage in
unethical conduct. Accordingly, a lawyer is required to refu se a case in
the following circumsta nces:
1) Conflict of interest: A lawyer cannot act if the brief would involve
labouring under an ir resolvable conflict of interest.1
2) Potential to be a witness: Though this falls with in the prohibition
against conflict of interest, it is worth emphasizing that a law yer
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-exi sting retainer has been terminated.4
5) Illegal p urpose : 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 as sist a client, or anyone else for that
matter, in dishonesty, crime, fraud, or illegality.6 “Knowledge,” in this
context, means not only actual awarene ss of wrongdoing but wilful
blindness and reckle ssness as well.7 Furthermore, a law yer must be
alert not to become the unwitting dupe of an unscrupulous client and
must if harbouring a su spicion 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.
& Cromwell JJ, dis senting but not on this point [Woo d].
7 Ont r 3.2-7, commentary 1.
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