To print this article, simply register or connect to Mondaq.com.
The duty of loyalty of lawyers to their clients is a founding principle of the adversarial system. The Supreme Court of Canada has described the duty of loyalty as consisting of a duty not to disclose confidential information, a duty to avoid conflicts of interest, a duty of commitment to the client’s cause (zealous representation) and a duty of openness with the client on matters relating to the mandate: R. c. Neil, 2002 SCC 70 (CanLII), at para. 18-19.
However, the duty of loyalty is not unlimited. Lawyers also have duties to the court, to the standards of their profession and to the public. Sometimes such obligations can lead to a conflict with the wishes of the client or with what the client believes is in his or her personal interest.
In a recent decision, the Ontario Court of Appeal addressed these issues while weighing the appellant’s allegations that his trial lawyer breached his duty of loyalty: R. c. Gregson, 2021 ONCA 685.
The appellant was convicted of first degree murder of a police officer and robbery following a trial in 2012.
In 2021, the appellant requested that the convictions be quashed and a new trial held on the grounds that his lawyer had breached his duty of loyalty. The appellant complained that his lawyer had lied to him about his personal history when he accepted the warrant and that the lawyer had inappropriately cooperated with the Crown and disclosed confidential information.
In essence, the appellant argued that his trial lawyer acted as a friend of the court (amicus curiae) rather than in his best interests, and that this shared loyalty effectively deprived him of a lawyer, thus resulting in a miscarriage of justice.
The notions of ineffective assistance of advice and breach of the duty of loyalty should not be confused. As the Court of Appeal stated at para. 25:
There is no breach of the duty of loyalty when the interests of a client are harmed by the actions of a lawyer. A lawyer acting with the intention of advancing the interests of a client can sometimes, through incompetence, prejudice those interests. Such a lawyer has not failed in his duty of loyalty. Otherwise, any act of incompetence would be an act of disloyalty.
In order to establish the breach of the duty of loyalty, the applicant had to demonstrate, on the one hand, that there was a real conflict of interest between the respective interests represented by his lawyer and, on the other hand, that there had been some impairment of the lawyer’s ability to represent his or her interests at trial due to the conflict:
R. c. Neil in par. 39-40.
It was common ground that the appellant was a “difficult client” and counsel for the respondent agreed to take on the case just weeks before the trial after the appellant’s former lawyer asked be removed from the file. At the time, the Respondent was a staff lawyer with Legal Aid Ontario. The Crown’s evidence was strong and there was only a slim chance that any aspect of reduced capacity could result in a verdict of manslaughter.
The appellant pointed out four specific cases which he said constitute a breach of the lawyer’s duty of loyalty.
First, the lawyer lied about his personal history, which the appellant claimed was done to gain his trust to keep it. Specifically, when they first met, the lawyer said he was a member of the RCMP and killed two people in the line of duty. It turned out that was not true. It also turned out that the lawyer told the same false story to his former legal partner.
In the opinion of the Court of Appeal, while the fabrication of biographical details was unethical and should not be tolerated, it did not undermine the lawyer’s entire relationship with the appellant. The fact that the attorney told someone else the same story meant it wasn’t due to divided loyalties on the attorney’s part.
Further, even if such a lie formed the basis of the lawyer’s relationship with the appellant, it would not constitute a breach of loyalty unless it was a real conflict and an alteration in the representation of the lawyer. As the lawyer had taken no action as counsel at the time he discussed his background, there could be no impediment to his representation at that time.
In the opinion of the Court of Appeal, the only inference that could reasonably be drawn to explain the lawyer’s conduct was that he was keen to develop a relationship with the appellant so that he could retain some control. and keep his client from losing his temper, changing instructions, and possibly firing him mid-trial. While his means of accomplishing this were not commendable, they were not disloyal.
Second, the appellant complained that the lawyer said he would challenge the voluntariness of certain confessions and statements, but told the Crown prosecutor that he knew this argument would not be accepted. .
The Court of Appeal concluded that the lawyer’s approach to a see say concerning the issue of voluntariness, in which counsel suggested that he admit admissibility first to avoid possible problems with the appellant, demonstrated a misguided attempt to offer the appellant the best possible defense in the face of to very solid evidence from the Crown.
The lawyer ‘s explanation for a “somewhat bizarre factum” he presented for the see say was that the appellant’s statements were going to be admitted no matter what. There was no evidence to support the appellant’s contention that he was not operational when he made the statements in question. Faced with this reality, the lawyer feared that if he simply conceded, the appellant would be furious, fire him, and it would derail things to his detriment.
Although the Court of Appeal noted that this strategy was “questionable”, there was no basis to suggest that it arose out of a lack of loyalty. Rather, it was an attempt by the lawyer to establish a respectful relationship with his client and allow him to determine how his defense would be conducted.
Third, the appellant alleged that his lawyer improperly shared the defense trial strategy and the weaknesses of his case with the Crown prosecutor. In this regard, counsel had sent the Crown a copy of the written instructions he wanted the appellant to sign. The Court of Appeal concluded that this was clearly an error and an error.
However, the attorney’s explanation for doing so did not support the conclusion that she was motivated by disloyalty to her client. He believed, rightly or wrongly, that the best he could do for the appellant in the circumstances was to keep him calm in order to prevent him from changing his instructions again and ending up without a lawyer in the middle of the trial. In addition, counsel demonstrated that the directions were not, in substance, different from the confessions that the appellant’s former counsel had previously filed.
Counsel admitted that, in retrospect, he erred in attempting to share the instructions with the Crown. However, this was not done as a result of a conflict.
Finally, the appellant claims that his lawyer lied about having consulted an expert on a possible defense of reduced capacity. In a letter to the Crown, the attorney claimed to have spoken with a “consultant,” namely his own daughter who he claimed was a neurosurgery resident in the United States. New evidence on appeal showed the lawyer did not have a daughter – or child or stepson – who was a neurosurgeon. It was not clear to whom, if there was anyone, the lawyer had spoken or why he would have made it up.
Nonetheless, the Court of Appeal concluded that there was no evidence of a conflict on the part of the lawyer that could provide a reason for him to lie. Rather, he was trying to find support for some sort of limited capacity defense in a case where the evidence just did not support it. The lawyer, while viewing the matter as largely hopeless, never threw in the towel.
In summary, the Court of Appeal did not consider the evidence as a whole to reveal a real conflict of interest on the part of the lawyer which could support a finding of breach of the duty of loyalty according to the Court’s test. Supreme of Canada in
R. c. Neil. The lawyer did not favor the interests of another party. Given the difficult circumstances in which the lawyer was acting, there were reasonable explanations for his “misguided conduct”. In the opinion of the Court of Appeal, the lawyer was not acting out of shared loyalty but was attached to the cause of his client.
Accordingly, the appellant’s sole ground of appeal relating to breach of the duty of loyalty was dismissed. A PDF version is available for download here.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.