Decision Making

• Author: David Layton; Michel Proulx
• Pages: 97-156

97

CHA PTER 3

DECISION MAKING

A. INTRODUCTION

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

ETHICS AND CR IMINAL LAW98

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.

B. DECISION MAKING AND THE RULES OF

PROFESSIONAL CONDUCT

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.