Decision Making

AuthorDavid Layton; Michel Proulx
A principal function of the client-lawyer rel ationship is to arrive at de-
cisions regarding the conduct of the case. The client and lawyer have
distinct roles and bring d ifferent strengths and intere sts to the process.
The client, charged with a criminal offence, faces social st igma and
serious restrict ions on liberty if convicted. He may have a number of
objectives that relate to the legal represent ation, going beyond the ob-
vious goal of escaping conviction if pos sible. The client will also often
possess in formation that can be inst rumental in identify ing and carr y-
ing out these objectives. As for the lawyer, she possesses experience
and knowledge with respect to the legal s ystem, to a degree the client
can never hope to match. The lawyer also h as professional obligations,
not to mention personal principles and preferences, which shape the
way that the defence is conducted. These and other attributes of t he
client and the lawyer have t he potential to inf‌luence the decision mak-
ing process of the professional relationship. The question becomes,
how are decisions to be made?
Criminal defence practitioners in Canada have traditionally fa-
voured granting the law yer near absolute control over the conduct
of the defence, allowing the client f‌inal say only regarding the deci-
sions how to plead, whether to have a jury, and whether to testify. This
conventional approach is variously described as the lawyer-control,
lawyer-centred, or lawyer-autonomy model. However, contemporary
jurisprudence and commentary is increasingly inclined to reject an un-
ref‌ined lawyer-control model as overpaternalistic. This is es pecially so
given two developments. First, Canadia n courts have recognized t hat
the client has a constitutiona l right to control aspects of the defence
beyond the few exceptions recognized under the lawyer-control mod-
el. Second, the problem of how to resolve an intractable disagreement
regarding the conduct of the defence has been made les s diff‌icult by
caselaw aff‌irming a lawyer’s ability to w ithdraw from the representa-
tion where the client rejects advice regarding an important matter of
trial strategy.
We are thus witnessing a shift in perspective concerning the alloca-
tion of decision making authority i n criminal cases. A more co-oper ative
or client-centred model, which encourages mutual decision making in-
volving the client and lawyer, is starting to gain traction as t he prefer-
able template for structuring the professional relationship.
Most Canadian rules of professional conduct contain no direct refer-
ence to the locus of general decision maki ng authority in the client-
lawyer relationship. But many address the subject tangentially in
dealing with other topics. The British Columbia rule setting out crim-
inal defence counsel’s obligation to put forward all available defences
provides that thi s duty must be carried out “by all fair and honourable
means and in a manner consistent with the client’s instructions.”1 A foot-
note to the New Brunswick r ule on competence quotes an English text
to the effect that incompetence may ari se through “sheer disobedience
to the client’s instructions.2 Many codes state that a lawyer should not
waive a client’s legal rights without the client’s informed consent.3 And
several provide that a law yer can only enter into an agreement with the
prosecutor about a guilty plea where, among other things, the client
has instr ucted him to do so.4
1 BC r 2.1-3(f) [emphasis adde d].
2 NB ch 2, commenta ry 1, n 1.
3 Alta, Sask 4.01(1) (commentary); BC, Man, Ont, NS, N L 5.1-1, commentar y 7;
CBA Code ch IX, com mentary 7. To similar e ffect, see NB ch 8, commentar y 8.
4 Alta, Sask 4.01(8); BC, Man, Ont, NS, NL 5.1-8; NB ch 8, comment ary 15(a);
CBA Code ch IX, com mentary 13.
Decision Making 99
The Alberta code touches on the issue of decision making some-
what more directly in addressing the closely associated duty to obta in
instructions f rom a client. Its basic rule states th at “a lawyer must ob-
tain instructions from the client on all matters not fall ing within the
express or implied authority of the l awyer.5 The commentary, while
not particularly clear i n def‌ining which matters fall w ithin counsel’s
express or implied authority, does shed some light on this diff‌icult
issue, stating in pa rt:
Assuming t hat there are no practical exigencie s requiring a lawyer to
act for a client without prior consult ation, the lawyer must conside r
before each decision in a m atter whether and to what extent the client
should be consulted or informed . Even an apparently routine step
that clearly fal ls within the law yer’s authority may wa rrant prior con-
sultation, dependin g on circumstance s such as a particul ar client’s
desire to be involved in the d ay to day conduct of a matter.
. . . . In addition, certain dec isions in litigation, such a s how a
crimin al defendant will plead, whet her a client will test ify, whether
to waive a jury tr ial and whether to appeal, r equire prior discu ssion
with the client. A s to other, less fundament al decisions, if there i s
any doubt in the lawyer ’s mind as to whether the client should be
consulted, it is most prudent to do s o.6
Similar to its Alb erta counterpart, t he Manitoba code provides that
a lawyer must obtain the client’s instructions based on informed and
independent advice.7 But its associated commentar y arguably comes
even closer to recognizing t hat it is the client, not the lawyer, who
generally has the f‌in al say in determining how the matter is conducted:
Lawyers prov ide legal services b ased upon the client’s inst ructions.
In order to provide appropriate in structions, the client should be fu lly
and fairly informe d. There may not be a need for the lawyer to obtain
explicit inst ructions for every single step on a m atter. Before tak-
ing steps, a lawyer should con sider whether and to what extent the
client should be consulted or in formed. Fundament al decisions such
as how to plead and what wit nesses to cal l almost always require
prior consultations. The s ame may not be so with les s fundamental
decisions. When in doubt, the l awyer should consult with t he client.
5 Alta r 2.02(3).
6 Alta r 2.02(3) (commentary).
7 Man r 3.2-2A.

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