A recent incident in Toronto courts has prompted some interesting evaluation of the role of the personal relationships between lawyers and clients, and when it is appropriate for lawyers to terminate those relationships based solely on personal emotion and/or respect.
The incident began back in November 2010, when Toronto defence lawyer Paul Slansky had a client he wished he didn't. During the course of representing Gregory Goodridge in Mr. Goodridge's criminal prosecution for threatening bodily harm, Mr. Slansky grew to dislike Mr. Goodridge. Then he grew to dislike him more. And more. Finally, on the day Mr. Goodridge's trial was to begin, Mr. Slansky realized that he "despised" Mr. Goodridge so much that he felt his ability to defend him was compromised. He sought to be removed from the record – essentially, he sought to fire Mr. Goodridge as his client.
While lawyers have been known to seek removal from record for certain clients, Mr. Slansky's honesty about his reasons seems to have backfired. "Even if I do my best to maintain my professional obligations to represent him professionally and vigorously," Mr. Slansky told the Court, "I know that subconsciously, I cannot do so because I want him to go down, so to speak."
Mr. Justice John Ritchie of the Ontario Court of Justice was less than impressed with the timing and the reasons for Mr. Slansky's request. Concerned that Mr. Goodridge would have difficulty finding another lawyer on short notice, and the resulting delay of a trial that had already been delayed repeatedly, Justice Ritchie refused the request and ordered the trial to proceed – with Mr. Slansky continuing to act for Mr. Goodridge.
Mr. Slansky refused to participate in the trial and appealed Justice Ritchie's order to the Ontario Superior Court. In January 2011, the Superior Court reversed Justice Ritchie's decision and removed Mr. Slansky as counsel.
Not satisfied with that result alone, Mr. Slansky brought a motion seeking costs against Justice Ritchie personally. That motion was dismissed on the grounds that the judge had been acting in his judicial capacity and thus enjoyed absolute immunity from civil liability.
However, Justice McWatt of the Superior Court of Justice had some strong words for both Justice Ritchie and Mr. Slansky. She found it "unfortunate" that Mr. Slansky had been "forced to bring this application to the Superior Court on a straightforward issue which should have been resolved before Justice Ritchie." Justice Ritchie's refusal was "simply the wrong decision" and Mr. Slansky's frustration was understandable. At the same time, Mr. Slansky's motion for costs against the judge showed "bad judgment," and he should have known it would not succeed. In all, it was a judicial tongue-lashing for both judge and lawyer.
Though it is worth noting that this was the first time in Mr. Slansky's 24-year legal career that he found himself seeking to be removed from an active client file like this, the case is a bold reminder of the personal dynamics of the relationship between lawyer and client. Lawyers deal with all manner of client as a matter of course. Indeed, the legal system was molded around the laudable goal of lawyers providing guidance and protection to those who find themselves on the wrong side of the law – and thus often on the wrong side of personal appeal.
So where do a lawyer's personal objections to a client factor in? Just how "despicable" does a client have to be in order to justify a lawyer's request to be removed from the record, or simply to "fire" the client? Is it an entirely subjective standard, or is there an objective threshold to be met? These are interesting questions that were touched on without being answered thoroughly in the Slansky matter.
We must, of course, also consider the effect on the client, no matter how despicable he or she may be. Even the despised client is, if not actually victimized, certainly at least ill-served in a process like this that went so far off the rails. Mr. Goodridge suffered inconvenience and delay and, presumably, will incur additional costs to retain other counsel and resume his defence.
Unless a client has actively tried to sabotage the legal process itself, it is difficult to see how he or she is served appropriately when a lawyer fires a client or is otherwise excused from a matter on the eve of trial – no matter how unpleasant the client may be on a personal level.
The various Canadian Law Societies generally restrict a lawyer's right to terminate the lawyer-client relationship at will, requiring "good" and "justifiable" cause or a "serious loss of confidence" between them. But there is often little further guidance that would apply to a situation where the lawyer simply dislikes the client so much that his or her ability to defend the client has been compromised. Should such lawyers face professional sanctions? There is little guidance on this question either.
Opinion in the profession is mixed on the issue. Perhaps unsurprisingly, some legal writers actually encourage lawyers to "cull" their client lists regularly, firing any clients who have become more trouble than they are worth. Others point to the fact that clients have no restrictions against terminating their lawyers without reason; while lawyers should rightly be held to a higher standard, it should not be an absolute one. Concerns over unpaid fees or blatant fraud by clients are relatively clear. But the lines get much more blurry when dealing with simple personality clashes or philosophical differences.
Fortunately, cases like Mr. Slansky's are rare. But that doesn't make them any less troubling.
Duane Chris, B.A. (hons.), LL.B., is a non-practicing lawyer providing legal research and writing/editing services in Southern Ontario. Duane can be reached at duane@dcresearch.ca.