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.
& Cromwell JJ, dis senting but not on this point [Wood].
7 Ont r 3.2-7, commentary 1.
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