Withdrawing for Ethical Reasons: Court not to Inquire Further

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to inquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.

Assuming that timing is an issue, the court is entitled to inquire further.  Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged.  

R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331 at para. 48.  

If counsel asserts that ethical reasons (or, to put it more broadly, a breakdown in the client-solicitor relationship) require that he/she no longer act for the client, the trial judge is obliged to order counsel removed without any inquiry into the particulars underlying the request.


R. v. Cunningham, at paras. 48-49, 58;
R. v. C. (D.D.), 1996 ABCA 303 (CanLII), 110 C.C.C. (3d) 323, at para. 19, leave to appeal refused: [1996] S.C.C.A. No. 453. 

 Inquiry into the breakdown of the client-solicitor relationship runs a very real risk of revealing communications that are subject to client-solicitor privilege and would put trial counsel in a position where he or she had to compromise the duty of loyalty owed to the client to fully explain the breakdown of the relationship.  It is hard to think of circumstances in which any meaningful inquiry into the reason for the breakdown in the client-solicitor relationship would not potentially compromise the accused’s position and his future defence by other counsel.  

R. v. Short, 2018 ONCA 1, at para. 35.

Requiring counsel to represent the accused at trial when counsel has announced that he/she cannot, in good conscience, continue to act for the accused renders the appearance of the trial unfair and will result in a miscarriage of justice, requiring a new trial.

R. v. Short, 2018 ONCA 1, at para. 39;
R. v. Rushlow, 2009 ONCA 461 (CanLII), at paras. 35-37. 

However, as solicitor-client privilege is the client’s to waive, counsel who disingenuously assert ethical reasons as the basis for their removal open themselves up to client complaints to their provincial law societies as well as possible civil action.


Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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