Dealing with Clients: From Start to Finish

• Author: Allan C. Hutchinson
• Pages: 74-91

CHAP TER 5

DEALING WITH

CLIENTS: FROM

START TO FINISH

“No resources of talent a nd training… is more wa stefully or unfairly

distributed t han legal skills. Ninety percent of l awyers serve ten per-

cent of people. We are over-lawyered a nd under-represented.”

— Jimmy Carter

Lawyers’ relationship w ith their clients stands at the heart of any dis-

cussion about legal ethics and professional responsibilit y. Whatever

the appropriate dyna mics and limit s of the duties owed to clients and

non-clients are considered to be, it is essential to have an i nformed

understanding of the nature and extent of the lawyer-client relation-

ship. Accordingly, before proceeding to tackle some of the more trad-

itional and obvious ethical ten sions in the dealings b etween lawyers

and clients, it is important to grasp the eth ical opportunities and re-

strictions that make up and def‌ine this are a. Although often neglected

in debates on legal ethics and professional responsibilit y, these issues

raise important moral dilemmas and professional challenges. Indeed,

it can be argued that t here is no more important issue for lawyers t han

how they are going to select the persons to whom they agree to provide

their serv ices. In many circumstances, it is t he most important, yet

least considered, decision th at lawyers make.

This chapter exami nes the relationship with clients from star t to

f‌inish. In the f‌irst s ection, I consider the crucial issue of client selec-

tion and whether there are any compelling eth ical responsibil ities to

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Dealing w ith Clients: From Start to Fin ish 75

reject or adopt certain potential client s or causes. The second section

deals with t he broad topic of compensation and, after providing a real-

istic context for discussion, highl ights the professional regul ation of

what amounts to fair and rea sonable fees. In the third section, I look at

the circumstances in which lawyers must or can withdraw t heir servi-

ces from their clients. The fourth sect ion is devoted to inquiring into

whether lawyers have an obligation, through legal aid and pro bono

work, to meet the ne eds of tho se people who ca nnot afford legal servi-

ces. Finally, the f‌ifth sect ion examines the possibi lities and prohibitions

around solicitation and adverti sing by lawyers. Throughout the chap-

ter, emphas is wi ll be placed on the profess ion’s and individual lawyers’

ethical respon sibility to give persons reasonable acces s to justice.

A. THE CHOICE OF CL IEN TS

Client selection is one of the most important and most neglected issues

for lawyers. There is little disc ussion of the ethical issues that such

a decision entails. Indeed, it i s arguably the most import ant decision

that any lawyer m akes because, once a client is t aken on, the lawyer

has become committed to a whole host of ethical and moral obligat ions

(see chapter 6). They are engaged in a special relat ionship that law-

yers cannot simply abandon as and when they choose. Moreover, all

clients are entitled to the same level of competence and commitment

from their lawyers. Once the lawyer-client relationship is establi shed,

a large part of the ethical die is cast; the lawyers’ options about what

they are and are not prepared to do are severely curtailed and their

obligation is closely circums cribed. This is entirely reasonable bec ause,

under any realistic v ision of professional respon sibility, it would be

unconscionable to take on clients and represent them in an incompe-

tent or hal f-hearted way; that would be a travesty of any kind of ethical

expectation.

In Canada, law yers can choose to represent whichever clients they

wish. While the oath t aken on call to the bar often contain s a commit-

ment to “refuse no man’s just cause,” this is more of a token gesture of

ceremonial window-dressing. The professional rules are imbued with

a general sense that legal services are i mportant and should be made

available to everyone, but there are no prohibitions on lawyer s refusing

to represent particul ar clients or causes. Some prov inces have recently

declared that law yers must not make their choice of clients in a way that

discrim inates on the basis of race, gender, or other similar dist inctions,

though it is arguable that th at was already the c ase under most general