Dealing with Clients: From Start to Finish

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

CHAPTER 5

DEALING WITH

CLIENTS: FROM

START TO FINISH

“No resources of talent and 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 and under-represented.”

— Jimmy Carter

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

cussion about legal ethics and professional responsibility. Whatever

the appropriate dynamics and limits of the duties owed to clients and

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

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 tensions in the dealings between lawyers

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

strictions that make up and def‌ine this area. Although often neglected

in debates on legal ethics and professional responsibility, these issues

raise important moral dilemmas and professional challenges. Indeed,

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

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

their services. In many circumstances, it is the most important, yet

least considered, decision that lawyers make.

This chapter examines the relationship with clients from start to

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

tion and whether there are any compelling ethical responsibilities to

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Dealing w ith Clients: From Start to Fin ish75

reject or adopt certain potential clients or causes. The second section

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

istic context for discussion, highlights the professional regulation of

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

the circumstances in which lawyers must or can withdraw their servi-

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

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

work, to meet the needs of those people who cannot afford legal servi-

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

around solicitation and advertising by lawyers. Throughout the chap-

ter, emphasis wi ll be placed on the profession’s and individual lawyers’

ethical responsibility to give persons reasonable access to justice.

A.THE CHOICE OF CLIENTS

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

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

a decision entails. Indeed, it is arguably the most important decision

that any lawyer makes because, once a client is taken 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 relationship 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 established,

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 vision of professional responsibility, 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, lawyers can choose to represent whichever clients they

wish. While the oath taken on call to the bar often contains 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 important and should be made

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

to represent particular clients or causes. Some provinces 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 that was already the case under most general