The lawyer-client relationship is a complicated one. There is a common misconception that lawyers are hired to do as the clients instruct, without fail.
Lawyers owe duties to several sometimes competing interests. They owe a duty to their client and must keep their confidence, act in their best interest and be their zealous advocate.
The legal profession in Canada is self-regulating. Each province has a law society that licenses, regulates and disciplines the members of the profession. Lawyers are bound by their province’s code of conduct and owe a duty to the profession and administration of justice and the courts.
When instructions from clients run counter to a lawyer’s duties, ethical decisions must be made.
The Canadian Bar Association has produced a draft code of conduct, which has largely been adopted with some tailoring by the provincial law societies. Most codes specify when a lawyer is obligated to withdraw from representing a client.
If a client insists on providing instructions to a lawyer that are inconsistent with the lawyer’s duty to the court, a lawyer must withdraw.
If a client is guilty of dishonourable conduct in proceedings or is taking a position solely to harass or maliciously injure another party, the lawyer must withdraw.
Most codes give the option to withdraw if clients refuse to take reasonable advice from their lawyer.
In litigation settings, clients are sometimes displeased when their lawyer engages in polite conversation with opposing counsel. Litigation is often an emotional experience, often resulting in negative feelings. It is only natural that clients would expect their lawyer to share their feelings.
On the contrary, the CBA code states that any ill feelings between the parties should never be allowed to influence the lawyer’s conduct or demeanour. Personal animosity between lawyers only serves to cloud judgment and could hinder the proper resolution of the matter.
In addition, lawyers will often have to work with opposing counsel in the future. Lawyers with good professional relationships often resolve matters faster and at less expense.
If a client enjoys the benefit of such a relationship, he owes that to his lawyer for not burning bridges on behalf of past clients.
A lawyer has a duty to advise his clients and take his instructions, be respectful of all parties and uphold the administration justice.
If a client is being unreasonable or malicious, the lawyer is under no obligation to act as a hired gun.
Brayden Gulka-Tiechko, an associate lawyer in McDougall Gauley’s Moose Jaw office, helped research and draft this article.