Common Ethical Dilemas for Young Criminal Lawyers

What follows is meant neither to be definitive nor comprehensive.  Rather, by way of illustration using commonly-encountered problems, identifying competing considerations and Rules of Professional Conduct which may be applicable, and offering one counsel’s opinion, it is hoped that the process of analysis and conclusion outlined herein may provide some guidance for defence counsel in deciding the right course of action to pursue.

PROBLEM #1: TO PLEAD OR NOT TO PLEAD ? THAT IS THE QUESTION

The Crown has offered an exceptionally lenient disposition, including accepting a plea to a much less serious offence than that charged and agreeing to an equally fair position on sentence.  The client hasn’t shown much interest in going over the disclosure with counsel but has continued to assert his innocence, denying his involvement in the act alleged.  He does, however, like the deal, is willing to take it to get out of jail more quickly and realizes his jeopardy in the event of conviction should the matter proceed to trial.

 THE COMPETING CONSIDERATIONS:

1. It’s the client’s decision to take the deal or not.  If necessary, he could be “encouraged” to admit the facts to get the deal.  If he runs the trial and loses, he may blame counsel for not having pushed him harder to accept the disposition, claim he was misunderstood in instructions he gave or say that he didn’t really understand all of the evidence against him.  Only he knows for sure what happened and if he wants to plead, it’s his choice;
2. Perhaps the Crown can deal with the matter in a manner somewhat akin to the American plea of “nolo contendere”.  The accused can be arraigned, plead not guilty, the Crown can call evidence (possibly even hearsay through the investigating officer) and the defence can say that they take no issue with the evidence as being sufficient for a finding of guilt.  Could that get around the concern about the client having to admit facts that he has steadfastly denied to date?
3. Rule 4.01(9) requires that in order for the lawyer to enter into an agreement with the prosecutor about a guilty plea, following investigation,  provided that:

 a) a lawyer for an accused or potential accused advises his or her client about the prospects for an acquittal or finding of guilt;

 b)   the lawyer advises the client of the implications and possible consequences of a guilty plea and particularly of the sentencing authority and discretion of the Court, including the fact that the Court is not bound by any agreement about a guilty plea;

 c)   the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged, and

 d)   the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea,

 the lawyer may enter into an agreement with the prosecutor about a guilty plea.”

 d.   Can it properly be said that acceptance of an offer of a lenient and speedy way to resolve serious criminal charges is ever done “voluntarily”?  It could be argued that there is a degree of inducement necessarily involved in such an offer, although the participation of counsel representing the accused militates against it having an improper effect.  What, then, of the accused who understands what it will take to put the “deal” into effect and tells his counsel what he thinks is necessary to implement the resolution?  Is counsel obliged to talk him out of it or even decline to accept the instruction on the basis he doesn’t feel the admission is sincerely made?

THE OPINION

Both the Rule and s.606 of the Criminal Code require the accused to admit the facts, including the necessary mental element, which will form the basis for the finding of guilt.  Proper representation of one’s client includes a detailed review of the disclosure in order to enable the accused to make an informed decision on how to proceed.  It is not uncommon for a client to deny or minimize his involvement, fearing the adverse consequences of conviction.  It is not improper for counsel to explore and, in appropriate circumstances, challenge the explanation offered, using the evidence outlined in the disclosure to evaluate the strength of the defence position.

The foremost principle is that it is the decision of the client as to what facts he will ultimately admit but it is the responsibility of his counsel to ensure that such a decision is informed.  The acceptance of the facts should be genuine and considered.  There is no real benefit in pressuring the client to accept the resolution, notwithstanding that counsel may feel it is in his best interest to simply abandon a position which seems unlikely to succeed at trial.  It is the client’s right to choose and he will have to live with the consequences.

Written instructions detailing what has been offered and accepted OR refused are necessary to ensure not only that the client has turned his mind to the relevant considerations but that such process has been properly recorded and acknowledged.

The “nolo contendere” approach is fraught with problems.  Apart from the likely reluctance of a Court to accept such a method of proceeding, the potential will always exist for a future assertion of innocence which, in turn, would call into question the adequacy of counsel’s representation of the client. 

PROBLEM #2 - A DEAL THAT’S TOO GOOD TO BE TRUE:

As a variant on problem #1, the exceptionally lenient offer is predicated on the young Crown’s misunderstanding of the details of the client’s record.  She has either failed to follow up on some of the particulars which formed the basis for a previous conviction or has been given inaccurate information regarding it.  Defence counsel is aware of the misunderstanding as a result of information provided to her by the client who, of course, is most willing to plead guilty and admit the necessary facts.  The details of the record, if left uncorrected, could mean the difference between the Judge acceding to the joint submission or rejecting it.

THE COMPETING CONSIDERATIONS

1. The source of information regarding the client’s history was the client, who provided it during privileged communications.  Absent a waiver, counsel is obliged to respect the privilege and remain silent;
2. As stated recently by Fairgrieve, J. in R. v. Horne, (2009) 98 O.R. (3d) 501 at p.514: “…in our adversarial system, the defence cannot be faulted for taking advantage of an unwittingly mistaken position adopted by the Crown…”.  In that case, the Court declined to accept a joint submission predicated on an incomplete record in the possession of the Crown at the time the plea was entered.  Based on additional convictions which subsequently came to light, the agreed-upon sentence would have been entirely inadequate.  His Honour’s views are consistent with the Commentary following Rule 4.01(1), (requiring the lawyer acting as advocate to represent the client “resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect”), which states:

“In adversary proceedings, the lawyer’s function as advocate is openly and necessarily partisan.  Accordingly, the lawyer is not obliged (save as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters derogatory to the client’s case.”

1. Rule 1.02 includes in the definition of “conduct unbecoming a barrister or solicitor”:

“(b) taking improper advantage of the youth, inexperience, lack of education, unsophistication, ill health, or unbusinesslike habits of another.”

Is the error by the Crown attributable to her youth or the resources which are or should have been available to her to obtain accurate information?

1. Rule 4.01(2)(e) prohibits a lawyer acting as an advocate from “knowingly attempting to deceive a tribunal or influence the course of justice by…misstating facts…suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime or illegal conduct.”  Is it fair to say that any submission purporting to rely upon the inaccurate history or record could constitute a misstatement of facts or suppression of material information?  Can counsel simply refrain from such reference, knowing that the information provided by the Crown to the Court is incomplete or inaccurate?
2. Rule 6.03(3) provides:

“A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of a client’s rights.”

Is an aspect of sentencing something which goes to the merits?  Are the client’s rights sacrificed by counsel taking steps to ensure that the Court is given correct information which is relevant to the determination of sentence?

 THE OPINION

In this situation, counsel is faced with what may be considered competing obligations - the duty to represent the client in an adversary process and the duty as an officer of the Court not to mislead the Court.  How may the balance be struck?

Absent waiver, counsel cannot breach the privilege that exists with her client.  However, counsel cannot make a submission which she knows to be untrue.  Accordingly, where the Crown is unaware of the accused’s record, it is an appropriate submission to say that “the Crown has not produced/is not relying upon any criminal record”.  It would not be proper, however, to make a positive assertion such as “the offence is isolated” or “it is out of character for the accused”.  Should the Court inquire of defence counsel as to the existence of a record, a proper response may be either “I am not in a position to advise the Court on that” or, perhaps preferably, “the Crown is not relying upon any evidence of a record”, recognizing that such a position is likely known to the Court at that point in any event.  Given the ruling of Fairgrieve, J. in Horne, however, it would be prudent to advise the client that the Court will not be bound to accede to a joint submission should additional information come to light about her criminal record.

The provision by the Crown of inaccurate information is more complex in that it involves a positive mis-statement of fact, as distinct from an incomplete history.  It is anticipated, if not recommended, that counsel will seek to inform herself as to the details of the record by reviewing same with the client.  Can counsel remain silent while the Court proceeds on inaccurate picture on the basis that such a course is dictated by the need to protect the client’s interests?

Where, as a result of previous representation of a client, counsel is in a position to correct information given by the Crown to the Court about an important aspect of the accused’s record, for example that a prior conviction for criminal negligence causing death involved impairment by alcohol, a factor which be highly material for the Judge to consider in imposing the sanction for a subsequent impaired driving conviction, the overriding duty on counsel is to ensure that the Court is not misinformed.  A successful Crown appeal against sentence, wherein fresh evidence as to the true history of the accused was admitted, provides an illustration of this principle:  R. v. Palarmachuk, unreported, per Kovacs, J., Ontario Court (General Division) at St. Catharines, Ontario

PROBLEM #3 - WHOSE LAWYER IS IT, ANYWAY?

The husband and wife have been charged with cultivation of marijuana as a result of a grow-op in the home which they own jointly.  His position is that it was wholly his enterprise.  If necessary, he’d plead, provided that the Crown will withdraw the charges against her.  There may be issues upon which the search could be challenged.  While not yet initiated, there is a strong likelihood that a forfeiture application will be vigorously pursued by the Crown.  The couple has no trouble with the same defence counsel representing both of them. 

THE COMPETING CONSIDERATIONS

a.      There’s no reasonable likelihood of conflicting defences given the husband’s position.  The wife wouldn’t be called as a witness.  They can save some money by having the same lawyer represent them.  The case against her is likely weak and her defence won’t need any additional time to prepare;

b.      Compliance with Rule 2.04(6) and (8), requiring the lawyer to obtain their consent, having advised them that no information received from one can be treated as confidential regarding the other and that, in the event a conflict develops and can’t be resolved, the lawyer may have to withdraw from representing both, should be easy;

c.      A conflict of interest could be said to arise from the potential that the Crown may be asked to withdraw the charge against one of the clients on the basis of a plea by the other.  A realistic Charter challenge to evidence may have to be foregone to obtain this disposition, to the detriment of the client required to plead.  The wife’s response to a forfeiture application, even if the charge is withdrawn against her, could potentially require her testimony putting all responsibility on her husband, given that her matrimonial interest in the property is at stake.

THE OPINION

While convenience may suggest that there is no real disadvantage in the lawyer representing both parties in this type of situation, the potential for a conflict remains real.  An approach whereby the wife does not obtain counsel in the initial stages of the defence, during the course of which the Crown may be approached regarding the prospect of accepting a sworn Affidavit from her detailing her lack of knowledge of and involvement in the cultivation in exchange for a withdrawal of the charge, could serve to meet the interests of all concerned.  It provides an equally-efficient mechanism whereby her interests may be adequately represented, at least until such time as a determination has been made regarding the continuation of the prosecution against her.  For this approach, counsel should be mindful of Rule 2.04(14) regarding dealing with unrepresented persons.  Should this resolution not be acceptable, a referral to independent counsel is recommended to avoid the risk of a conflict arising in the future.

PROBLEM #4 -LIARS AND OTHER STRANGERS

The lawyer has called a witness, whether the accused or someone else, and is in the middle of examination-in-chief when the witness proceeds to lie.  The lawyer is aware of the falsity of the evidence, either as a result of other information provided to him during the course the preparation for trial or, in the case of the client, from information provided directly to him.

COMPETING CONSIDERATIONS

1. Counsel is in the midst of the witness’ evidence.  It would be most detrimental to the client’s case to disclose that the evidence is false.  There is always the possibility that the truth may ultimately come out during the course of cross-examination by the Crown;
2. While it might be something which could be corrected if a recess were granted, counsel is not permitted to talk to the witness in mid-testimony about evidence that has already been given: Rule 4.04(a);
3. In the Commentary following Rule 4.01(1), the lawyer is not permitted to call evidence which, by reason of the admission made to him by his client, he believes to be false.  However, it could be argued that the evidence now presented was not that which the lawyer intended to call;
4. Rule 4.01(2)(b) prohibits the lawyer from knowingly permitting the client to do anything which the lawyer considers to be dishonest.  The lawyer is similarly prohibited from knowingly attempting to deceive a tribunal or influence the course of justice by offering false evidence (sub-para.(e)) and knowingly permitting a witness or a party to be presented in a false or misleading way (sub-para.(j)).

THE OPINION

Counsel has been put in a most delicate situation.  The revelation of information provided during the course of the solicitor-client relationship is not possible due to privilege.  The undermining or refutation of a defence witness’ evidence may prove fatal to the defence.  On the other hand, counsel cannot in any way rely upon the false testimony nor can he invite the Court to do so.  Counsel may have to complete the evidence by simply saying to the witness, “Is there anything else you wish to say?” and then making no reference whatsoever to the evidence of the witness in final submissions.

The option of seeking the consent of the Crown to speak with the witness in mid-testimony may be possible in rare circumstances but the difficulty will only continue if the evidence is unchanged.

The testimony of the client may put counsel in the position of having to seek to withdraw from the record pursuant to Rule 2.09(7), where the client has been guilty of dishonourable conduct or where it is clear that counsel’s continued employment will lead to a breach of the Rules.  The precise reason for the request to withdraw may not be something which can be disclosed beyond the statement, “It is my position that I can no longer continue to represent my client having regard to my professional obligations including the duty to respect the privilege that applies between lawyer and client.”

 SHORT SNAPPERS

1. Is there anything preventing counsel from speaking with a Crown witness?  The Commentary following Rule 4.01(2) as well as Rule 4.03(1) confirms that there isn’t but remember:

         i.            Don’t take unfair or improper advantage of someone who may be vulnerable;

         ii.            Don’t approach someone whom counsel knows to be represented by counsel without that counsel’s consent; and

         iii.            Have a witness present or, even safer, have someone else do it on counsel’s behalf.  One doesn’t generally want to become a witness.

2. What should one do if the client threatens serious harm to someone?  What if that someone is counsel herself?  Rule 2.03(3) authorized the release of only such confidential information as is necessary to prevent death or serious bodily harm where the lawyer believes, on reasonable grounds, that there is such a risk.  Serious psychological harm that substantially interferes with health or well-being, is included.

3. What if the lawyer has made a serious mistake in the representation of the client?  Rule 4.01(5) requires counsel to disclose an error or omission which, if done/not done knowingly would have been a breach of the rule and “do all that can reasonably be done in the circumstances to rectify it”, subject to Rule 2.03 regarding confidentiality.  Further, where the error is something that is or may be damaging to the client and cannot be readily rectified, Rule 6.09(1) requires the lawyer to personally inform the client of the error, recommend she obtain independent legal advice and advise her that the lawyer may not be able to act further for the client.  Subs.(2) also requires prompt notification to the lawyer’s insurer.

Jeffrey Manishen is a partner at Ross & McBride LLP.  He practises in the area of criminal law.  Jeff can be reached at (905) 572-5813 and jmanishen@rossmcbride.com