R. v. Cunningham: New Solutions for Legal Aid?


Now this seems to be a novel solution to our legal aid problems. Those who spend their summers attuned to the legal world may remember the legal aid boycott (when more than 300 lawyers stopped accepting Legal Aid certificates,) which quite handily highlighted issues of access to justice. While Legal Aid attempts to span these chasms in our justice system, only a select few qualify for assistance. So what happens when a lawyer accepts a case, only to find out their client no longer qualifies for that Legal Aid assistance? Well, according to the Supreme Court, it might just be too bad for that lawyer. Instead of being merely overworked, understaffed, and underpaid, now you may not be paid at all. While the decision in R. v. Cunningham, 2010 SCC 10 has important ramifications for all in the legal profession, the potentially adverse effects on a segment of the profession already starved for adequate compensation is downright frightening.


Jennie Cunningham is a criminal defence lawyer employed by the Yukon Legal Services Society, colloquially known as Legal Aid. Her client, a Mr. Clinton Lance Morgan, was charged with three sexual offences against a young child and was set for a preliminary inquiry on June 26, 2006. In the beginning of May, Legal Aid informed Mr. Morgan that he had to update his financial information or else he would lose his Legal Aid funding. Mr. Morgan failed to update his information, and consequently was informed by Legal Aid that Ms. Cunningham was no longer authorized to represent him. Accordingly, Ms. Cunningham promptly brought an application to the Territorial Court of Yukon to withdraw as counsel of record.

The application was refused. The judge held that, since the charges were very serious, a young child was involved, Mr. Morgan was unlikely to obtain other representation, and delay would prejudice Mr. Morgan by being labelled a potential sexual offender, Ms. Cunningham was required to continue to represent him.

By the time the matter rolled into the Court of Appeal for the Yukon territory, the issue had become moot; nevertheless, the appeal proceeded in order to provide guidance on the legal issue. The Court of Appeal allowed the appeal, finding that the trial judge had no discretion to refuse withdrawal on the basis that:

(a) the law society has the primary interest in lawyer regulation and court oversight would create a conflict between the court’s decision and disciplinary action by the Society;
(b) there is a potential threat to solicitor-client privilege in the case the court asks for the reasons for withdrawal; and
(c) compelled representation potentially places the client’s best interests and the lawyer’s interests in conflict.

Only in “extreme circumstances” where withdrawal amounts to a “serious affront to the administration of justice” should the court exercise its contempt power. The matter was then appealed to the Supreme Court.


The Court noted that the fiduciary nature of the solicitor-client relationship means a lawyer is fettered in his or her ability to withdraw. The question at issue was whether a court’s jurisdiction to control its own process may further shackle a lawyer’s freedom to withdraw. The Yukon Court of Appeal’s decision followed the lines of reasoning in the British Columbia courts, but went against the majority of courts in other jurisdictions.

In finding that courts do have this jurisdiction, the Court adopted the reasoning of R. v. C. (D.D.) , 110 C.C.C. (3d) 323: because lawyers are officers of the court, a lawyer is subject to the court’s jurisdiction to refuse a withdrawal. Furthermore, the grant of power to a court includes all power that is necessary to accomplish its objective, and thus would encompass applications for withdrawal. The Court then turned to consider and reject the three reasons enumerated in the Court of Appeal decision.

Regarding solicitor-client privilege, the Court pointed out that the rationale for protection and privilege is hardly implicated here when the disclosure is limited to the fact that the client has not, or cannot, pay their fees. The remote possibility that there may be an issue of privilege does not justify leaving this choice to counsel.

The Court also drew an important distinction between the role of the Law Society and the role of the courts. The Law Society does not have exclusive oversight over lawyers; rather, the Law Society acts reactively to discipline lawyers for breaches of their professional obligations. Conversely, the court must act proactively to protect the administration of justice and trial fairness. When concerned about the latter, the court is justified in taking proactive steps to protect these objectives.

Finally, regarding the potential conflict of interest, the Court remained unconvinced. Instead, the Court chose to place its faith in the higher ethical obligations of the lawyer, such that they would not act in a manner which would prejudice their clients interest.

In closing, the Court stated that courts ought not to exercise this jurisdiction lightly. In deciding whether to allow a lawyer’s request for withdrawal, a court shall consider whether it is sufficiently in advance of impending proceedings and the reasons for withdrawal. If the application is on the basis of “ethical reasons”, the court must allow the request. A lawyer may not, however, argue “ethical reasons” where a client has not paid. The Court goes on to consider a list of other relevant factors, including overarching concerns of fairness to both counsel and the client.


Professor Alice Woolley argues in her analysis of the appellate court decision that the problems engaged by judicial interference with the reasons for withdrawal outweigh the problems resulting by a lawyer’s untimely or improper withdrawal. While I agree in part with those arguments, I believe this decision, in considering the scope of the court’s jurisdiction, bites off its nose to spite its face.

The key sources of power for a court to have jurisdiction over the lawyer’s application appear to stem from the court’s jurisdiction to control its process and ensure its objectives and from the lawyer’s role as officer of the court. Since the latter role is limited and the lawyer’s primary obligation remains to his client, however, to the extent that those two roles conflict the duty to the client should win out.

Furthermore, the all-important objective the Court is attempting to uphold remains the administration of justice and a fair trial. The very idea of the “administration of justice” presupposes a system in which access to justice is prevalent. Concerns over non-payment in ‘serious’ cases arise will likely arise most frequently in circumstances involving Legal Aid. By imposing further obligations and restriction on those lawyers engaged in Legal Aid, the court may inadvertently further remove the specter of justice from those who need it the most. If I can only bill two hours of work for my legal aid client, and face the very real possibility that even then I may be stuck with a non-paying client, another area of practice may begin to sound even more attractive to me.

Finally, while I admire the Court’s belief in the higher ethical obligations of a lawyer, it does not further these purposes by placing stumbling blocks in their path. When the client no longer is paying, as in this case, not by reason of impecuniosity but by a failure to comply with an administrative requirement, one can imagine the frustration of the lawyer who has contributed much of his or her own “spare” time for a client that is unwilling to even make a minimal effort to receive funding. The potential for a conflict of interest in my opinion cannot be overstated, and an idealistic approach may run the risk over ignoring the practicalities of the situation. Much like Legal Aid.

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