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Mahoney, Richard --- "Mere mouthpieces, hopeless cases, and a Lawyer's inability to terminate a retainer" [2017] OtaLawRw 6; (2017) 15 Otago LR 101

Last Updated: 8 December 2019

101

Mere Mouthpieces, Hopeless Cases, and a Lawyer’s Inability to Terminate a Retainer

Richard Mahoney'

It would seem to the [Lawyers Standards] committee that [lawyer ‘A’] was not fully aware of his obligations regarding instructions/retainers ... There is some sympathy for that given an apprehension of the committee that he would not be alone amongst lawyers in that position.¹

Introduction

In this article I consider two related questions which arise when a lawyer who has been retained to act in a litigation matter is instructed by the client to take a step which the lawyer believes is so unwise that he or she would (if such a choice were open) refuse to follow the instruction. The two questions are: in such a situation, can the lawyer (without incurring negative professional disciplinary repercussions²) –

(a) continue to represent the client, but not follow the instruction, or
(a) terminate the retainer and refuse to further represent the client?

I will refer to question (a) as ‘the need to follow instructions’, and question (b) as ‘the right to terminate the retainer’.

It might be thought that by this point in the 21st century the answers to these questions would be clear. However, I suggest that this is not so. The most recent pronouncements from our courts differ from the longstanding precedents of earlier times and the Law Society’s Rules of Conduct and Client Care for Lawyers³ (‘the Client Care Rules’ or ‘the Rules’) are confusing at best, at least insofar as the second question is concerned. I attempt to justify these criticisms by first setting out the framework of the relevant Client Care Rules and then engage in more detailed discussion about them in the course of looking at the issues raised by our courts’ varied pronouncements.

2 The Client Care Rules

(a) The need to follow instructions

Among the extensive list of materials which the Client Care Rules require all lawyers to provide to their clients prior to undertaking significant

* Professor, Faculty of Law, University of Otago.
¹ See text accompanying n 15 for discussion of the case from which this

quote is taken.

2. My primary concern is action at the hands of the Law Society’s disciplinary
   mechanisms, but a subsidiary concern is criticism by a Court.
3. Made pursuant to ss 94 and 95 of the Lawyers and Conveyancers Act
   2006.

work under a retainer⁴ is a copy of the information set out in the Preface to those Rules. That Preface opens with the statement to clients that their lawyer⁵ “must act ... in accordance with instructions received”. Further on, Rule 7.1 requires a lawyer to consult the client “about the steps to be taken to implement the client’s instructions”. Even more categorical is Rule 13.3, which requires that (subject to the lawyer’s overriding duty to the court) a lawyer “must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation”. Because the issue will arise again, it is worth pointing out at this introductory stage that Rule 13.3 does not say that a lawyer is entitled to disregard a client’s instructions when the decision in question can be characterised as something less than “significant”. It is true that the way the Rule is worded may excuse a lawyer from seeking and obtaining instructions on less than significant matters, but this does not provide any assistance to the lawyer who refuses to follow a client’s instructions (of any level of significance) that have actually been given. Some support for that seemingly straightforward proposition can be found in Rule 13.13.1 in the section of the Rules entitled “Duties of defence lawyer”. That Rule first states that when a defence lawyer takes instructions, he or she must ensure that the client understands the implications of the client’s decision. The lawyer must then “act in accordance with the client’s instructions”. It is true that Rule 13.13.1 refers specifically to instructions on a plea and whether or not to give evidence, but by stating⁶ “when taking instructions from a client, including instructions on a plea and whether or not to give evidence ...”, the rule is merely emphasising the importance of these two issues. It is not limiting to these issues alone, the Rule’s overarching duty to follow instructions.

(b) The right to terminate the retainer

Let us begin our consideration of this question by looking at Rule 4.2 – a rule that was unprecedented in New Zealand prior to the 2008 Lawyers and Conveyancers Act⁷ and which is a far cry from the Australian

⁴ Client Care Rules 3.5 and 3.5A.
⁵ Emphasis added.
⁶ Emphasis added.
⁷ The Rules of Professional Conduct under the earlier Law Practitioners Act

1982 went no further than Rule 1.02, which dealt only with the (general) duty to accept instructions but did not deal with the focus of termination of a retainer that is found in current Rule 4.2.

precedent from which it was originally fashioned.⁸ The basic proposition of Rule 4.2 is that, having been retained, a lawyer must complete the “regulated services required by the client under the retainer” unless one of the escape valves set out in Rule 4.2.1 is available. For our purposes the most important of these escape valves is the right to terminate the retainer for “good cause”, with our attention aimed at the following subsections (a) and (e) of the non-exhaustive list of good causes set out in Rule 4.2.1:⁹

4.2.1 Good cause includes–

(a) instructions that require the lawyer to breach any professional obligation:

(e) except in litigation matters, the adoption by the client against the advice of the lawyer of a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations.¹⁰

We will be returning to further consider (and criticise) this rule, but at this point the full picture of the relevant Client Care Rules needs to be completed by citing Rule 4.2.2’s statement that none of the matters set out in Rule 4.1.1 is good cause to terminate a retainer. Here is what is going on: Rule 4.1 fleshes out what is usually referred to as ‘the cab rank rule’ that (per Rule 4) requires a lawyer (again, in the absence of good cause) to accept instructions from any client to perform work that is within the lawyer’s fields of practice. It is known as the cab rank rule to conjure up the image of the first taxi in line taking on the next customer, regardless of the customer’s attributes or the length of the journey, etc. In view of the fact that the highly placed source of Douglas White QC (current (2017)

The original draft of what became Rule 4.2 appeared as Rule 3.5 in Duncan Webb’s “Discussion Draft: Rules of Conduct and Client Care for Lawyers – A Paper for the Board of the New Zealand Law Society”, 20 February 2007, at 40. As is stated by Webb in a ‘note’ to that draft (at 41), it was based on r 6 of the Australian Model Rules. The relevant part of the draft rule said that (in contrast to the final version of Client Care Rule 4.2.1(e)), good cause to terminate a retainer includes “the adoption by the client against the advice of the lawyer [of] a course of action which is in the view of the lawyer highly imprudent or repugnant”. It will be noted that no mention is made in this draft of the two complicating factors found in current Rule 4.2.1(e), namely: “Except in litigation matters”, and “and may be inconsistent with the lawyer’s fundamental obligations”, as discussed at text accompanying n 29 below.

The omitted provisions of Rule 4.2.1 are (paraphrased): (b) client’s failure to pay the lawyer’s bill; (c) client misleading or deceiving the lawyer; and (d) client failing to provide the lawyer with timely instructions.

It is almost certain that the “fundamental obligations” referred to in Rule 4.2.1(e) are those set out in s 4 of the Lawyers and Conveyancers Act 2006 (and specifically listed in the Preface to the Client Care Rules).

President of the Law Commission)¹¹ appears to be labouring under a mistaken view of the scope of New Zealand’s manifestation of the cab rank rule, it should be emphasised that Rule 4 (which refers specifically to “A lawyer”), is not limited to litigation matters – all practitioners are bound by our cab rank rule.¹² We will return to that point, but here it can be said that Rule 4.1 sets out some predictable examples of “good cause” to refuse to accept instructions.¹³ Most important for our purposes is Rule 4.1.1. It lists three matters which do not amount to good cause to refuse to accept instructions, the final two¹⁴ being (Rule 4.1.1(b)): “anyersonal attribute of the prospective client”; and (crucially) (Rule 4.1.1(^pc)): “the merits of the matter upon which the lawyer is consulted”. The end result is that, by virtue of Rule 4.2.2, (stating: none of the matters in 4.1.1 is good cause to terminate a retainer), the same two matters set out in Rules 4.1.1(b) and (c) (personal attributes; merits of the matter) do not constitute good cause for a lawyer to terminate an existing retainer.

(c) Law Society discipline

Having outlined the controlling Client Care Rules governing the question of the right to terminate the retainer, we can pass on to what the Law Society’s disciplinary arm has had to say. The sparse guidance we have is, not surprisingly, in line with the Client Care Rules outlined above. The brief report of the proceedings against lawyer ‘A’¹⁵ discloses that a breach of the Rules occurred when ‘A’ refused to follow his client’s instructions to call specific witnesses. ‘A’ made his refusal clear to his client and told him that if he (the client) persisted in those instructions, the client should get a new lawyer – which is what occurred. ‘A’’s submission to the Law Society’s Standards Committee was reported

Douglas White QC, “NZLS – RCCC – Rule 4.2.1(e)” (2009) 730 LawTalk 23 at 24 (stating that the cab rank rule is “only applicable in litigation matters”: citing the Australian text – Gino Evan Dal Pont Lawyers’ Professional Responsibility (3rd ed, Lawbook, North Ryde NSW, 2006) at 59, [3.10]. See too n 12, immediately below.

If this proposition needs any confirmation beyond the clear opening phrase of Rule 4 (“A lawyer”) it can be found in Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) (‘Webb et al’) at 45 n 44. In this passage (in which there appears to be an error referring to “r1.02” instead of the obviously intended ‘Rule 4’) Rule 4 is treated as imposing on [all] practitioners, with limits, the obligation not to refuse instructions. Likewise, at 175–176 Webb et al distinguishes between the cab rank rule itself and New Zealand’s “whole retainer” rule as set out in Rule 4.2(c) (which prevents a lawyer terminating a retainer in the absence of good cause) – by noting that the whole retainer rule is not restricted to litigation matters (as is the common law cab rank rule).

Such as lack of available time, or instructions that could require the lawyer to breach any professional obligation.

The first is Rule 4.1.1(a), which states that good cause does not include any grounds of discrimination prohibited by law, including those set out in s 21 of the Human Rights Act 1993.

“Fined for refusing to act on instructions” (2013) 824 LawTalk 28.

as:¹⁶ “I am not bound to carry out instructions [that] I believe, as counsel, are ill-founded and not the proper way to conduct the case”. This fell on deaf ears, as the Committee declared breaches of Client Care Rules 4.2 and 13.3 (both discussed above) and held that ‘A’ could not rely on any of the justifications set out in the Rules which permit a lawyer to terminate a retainer. Despite the cold comfort of the quote from the Committee’s judgment that is set out at the commencement of this article, ‘A’ was hit with a fine, costs, and an order to apologise to the client.

A more recent Lawyers Standards Committee decision,¹⁷ involving lawyer ‘G’, is along the same lines (although not involving a termination of the retainer by the lawyer). In civil proceedings, G had urged his corporate client in¹⁸ “very strong terms” to permit their filed caveat to lapse and be replaced with a charging order. Despite the client’s refusal to accept this suggestion, G went ahead and entered into a joint memorandum with opposing counsel, agreeing to let the caveat lapse. When G’s client learned of the situation, the company quickly terminated G’s retainer. In explanation to the Standards Committee, G argued that there were going to be real risks in any attempt to support the validity of the caveat and the plan recommended by G was the most efficient way to ensure that a charging order was obtained and to avoid a costs award being entered against G’s client. In imposing an $8,000 fine (and $2,500 in costs) on G for what the Committee characterised as conduct at the¹⁹ “higher end of ... unsatisfactory conduct”, the Committee concluded that “[G’s] advice may well have been sound, but that is not the point. His client chose not to follow that advice. That is a client’s prerogative.”

3 Judicial Approaches

In outlining the views of New Zealand Courts to the two questions of the need to follow instructions and the right to terminate the retainer, we are faced with a couple of complications. The first is that there is a substantial divergence between the older line of authority which is manifested in R v McLoughlin,²⁰ and the more recent pronouncements in Hall v R.²¹ The second complication is that in both lines of authority the (appellate) Court is not truly focused on providing guidance to lawyers on the finer

¹⁶ At 28.

¹⁷ “Acting contrary to client’s instructions” (2017) 909 LawTalk 57.
¹⁸ At 57.
¹⁹ At 57.

²⁰ R v McLoughlin [1985] 1 NZLR 106 (CA).
²¹ Hall v R [2015] NZCA 403 (in which the judgment of the Court was

delivered by the same Douglas White QC, who is referred to in n 11). Hall has been regularly cited (eg F (CA126/2016) v R [2016] NZCA 611 at [16]; J (CA108/2017) v R [2017] NZCA 310 at [13]; Clutterbuck v R [2017] NZCA 361 at [132]). However, some ambivalence may be evident in Lyon v R [2016] NZCA 293 where at [20] the Court gave a good summary of Hall, yet at [18] the Court in Lyon said: “It is the defendant’s right, and not that of their counsel, to determine the way in which the case should be run”.

points of their professional responsibility as set out in the Client Care Rules. It is, rather, to determine if, in the particular case before the Court, a miscarriage of justice occurred at the trial, necessitating an order that the appeal be allowed, the conviction set aside, and (probably) a new trial ordered. Thus in any given case a Court might conclude that, for example, a defence lawyer’s failure to follow his or her client’s instructions did not mean that the client’s conviction amounted to a miscarriage of justice. But that conclusion should not necessarily be relied upon by lawyers as guaranteeing that in the future, failures to follow instructions in similar circumstances will not amount to breaches of the Client Care Rules in the eyes of the Law Society.²²

4 The McLoughlin line of authority

The 1985 judgment R v McLoughlin²³ is short and clear and has been widely cited in subsequent New Zealand authorities²⁴ and by Canadian and Australian commentators.²⁵ The Court of Appeal overturned the defendant’s rape conviction because his trial lawyer, contrary to the defendant’s instructions, put forward the defence of consent rather than that of alibi. The lawyer’s explanation for doing so was that he considered that the evidence from the proposed alibi witnesses was unreliable, and thus improper for the lawyer to adduce. In an oft-quoted passage, Hardie

In Harley v McDonald [2002] UKPC 40; [2002] 1 NZLR 1 (PC) this point was made in the different context of a court’s power to award costs against a barrister personally. At [51] the Privy Council stated: “But it is not appropriate when considering whether or not to make a costs order [against the barrister] for the Court to rule upon whether, in addition to a breach of duty to the Court, there has been a breach of the rules of professional conduct.”

R v McLoughlin, above n 20.

The approach taken in McLoughlin is confirmed (even if no specific mention of McLoughlin is always made) in R v Reti CA396/91, 22 November 1991 at 9–10; Davidson v R [2012] NZCA 391 at [54]; R v S [1998] 3 NZLR 392 at 394; Byford v R CA74/93, 25 June 1993 at 3–4; R v Hunt CA433/03, 30 August 2004 at [20]; R v Hookway [2007] NZCA 567 at [18]; R v Wi [2007] NZCA 96 at [12]; R v Walling CA355/05, 20 March 2006 at [17]; R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109 at 112; Garraway v R [2014] NZCA 67 at [32]; F (CA506/2014) v R [2015] NZCA 440 at [17]; Green v Police [2015] NZHC 2280 at [79]; Ross v R [2015] NZCA 387 at [35], [43]; Webb et al, above n 12 at 291.

Canada: Michel Proulx and David Layton Ethics and Canadian Criminal Law (Irwin Law, Toronto, 2001) at 125 (n 51), 139 (n 103), 146 (n 130) – although, in the latter passage Proulx and Layton note that McLoughlin’s suggestion of ‘terminate the retainer if unwilling to follow instruction’ may be wrong. On that particular issue see further discussion below at text accompanying n 41; Australia: Ysaiah Ross Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (5th ed, Lexis Nexis, Chatswood NSW, 2010) at 276. Ross discusses how the earlier Australian Bar Association Rule (Rule 7.2(f) of the 1993 Code of Conduct) supported the position taken in McLoughlin, but more recent Australian Rules have watered down that position.

Boys J, speaking for the Court, said that:²⁶

... the plain unvarnished fact is that counsel most certainly had no right to disregard his instructions. Following any advice he thought it proper to give his client, his duty was either to act on the instructions he then received or to withdraw from the case.

It does happen from time to time that a barrister will find himself unable or unwilling to act in accordance with his client’s wishes. They may, for example, be incompatible with his duty to the Court or with his professional obligations; or he may consider that compliance would be prejudicial to his client’s best interests. Should such a circumstance arise, then he must inform the client that unless the instructions are changed he will be unable to act further.

Now, even on the material that has already been referred to in this article, some comment on McLoughlin is warranted. First, the judgment is in line with the Client Care Rules’ insistence on a lawyer obtaining instructions on significant matters. That proposition continues to be universally accepted.²⁷ It may also be said that, assuming the case to be one in which the lawyer continues to act, McLoughlin and the Client Care Rules agree that the lawyer must follow the instructions which have been sought and obtained from the client.

However, a parting of the ways occurs when we come to the lawyer’s ability to terminate the retainer. As highlighted in the above passage, McLoughlin’s solution is that it is the lawyer’s duty to withdraw when he or she is unwilling to act further because the client’s instructions are, in the lawyer’s view, prejudicial to the client’s best interests. Although I conclude this article with the plea that this aspect of McLoughlin be reinstated in the Client Care Rules, it must be said that on this point the judgment cannot be reconciled with Client Care Rule 4.2.1’s dramatic restrictions on a (litigation) lawyer’s right to withdraw. Let me expand by looking at Rule 4.2.1 and, in particular, Rule 4.2.1(e) (set out above)²⁸ in more detail now.

(a) The complications caused by Client Care Rule 4.2.1(e)

Rule 4.2.1(e) provides a particular “good cause” to terminate a retainer to a lawyer who is engaged in a non-litigation matter, but the rule expressly states that this same good cause does not apply to a lawyer who is engaged in a litigation matter.²⁹ In other words, in Rule 4.2.1(e)

²⁶ R v McLoughlin, above n 20 at 107 (emphasis added).
²⁷ Lo ey v R [2013] NZCA 579 at [51]; R v K (CA421/08) [2009] NZCA 176

at .[51]–[52]. Additionally, there is a duty on counsel to seek instructions when matters arise in a proceeding which were not anticipated when initial instructions were obtained: R v Hookway, above n 24 at [19]; R v Kerr CA504/99, 11 April 2000 at [22]; R v Kingsbeer [2007] NZCA 300 at [32], [37].
²⁸ Text accompanying n 9.
²⁹ This was recently recognised in Bligh v the Earthquake Commission [2017]

NZHC 995 at [58].

the Law Society has gone out of its way to emphasise that in litigation it does not amount to good cause for a lawyer to terminate a retainer if, against the advice of the lawyer, the client adopts a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations.³⁰

An attempt has been made to explain away this remarkable proposition in Rule 4.2.1(e)³¹ by arguing that the Rule is aimed solely at the sort of non-litigation “highly imprudent” course of action that is exemplified by an impecunious client’s proposed purchase of an expensive property. The explanation continues by justifying the Rule’s opening exclusion of litigation matters as catering for the need for this class of lawyers to continue representing a client’s pursuit of a hopeless case. Thus it is said that the specific exclusion of litigation matters from the “good cause” to terminate that is provided by Rule 4.2.1(e) is necessary to affirm the requirement for:³²

[A] lawyer in litigation to continue to represent a client even though [the lawyer] believes the case to be hopeless and the client’s instructions ‘highly imprudent’ or ‘tactically misguided’.

In response to this argument I offer two comments. First, insofar as hopeless cases are concerned, this explanation would leave Rule 4.2.1(e) contradicting the combined effect of Rules 4.2.2 and 4.1.1(c) for non-litigation lawyers, while unnecessarily repeating the effect of those two Rules for litigation lawyers. This is so because, as may be remembered from the earlier discussion of the Client Care Rules,³³ Rules 4.2.2 and 4.1.1(c) combine to deny that “the merits of the matter” can ever amount to good cause to terminate a retainer. That proposition applies to both non-litigation lawyers (the direct target of Rule 4.2.1(e)) and litigation lawyers (who are specifically put beyond the scope of that same Rule). Thus, the argument (set out above) that Rule 4.2.1(e) allows a non-litigation lawyer to withdraw from a ‘hopeless case’ such as an impecunious purchase of expensive property, directly contradicts the effect of Rules 4.2.2 and 4.1.1(c) – that the merits of the matter provide no ground to withdraw. Concurrently, to say that the specific exemption

³⁰ This proposition may be accepted by Webb et al, above n 12 at 180

when the authors state, somewhat cryptically: “The New Zealand Rules explicitly provide that while client imprudence is a ground to terminate a retainer in most cases, this is not a basis for refusing (and by extension terminating) a retainer.” (citing Rule 4.2.1(e) in accompanying n 151) – Did the authors intend to add “in litigation matters” to this sentence to make it more comprehensible? The point is made more clearly at 181 where the authors state that, in New Zealand “in litigation, a lawyer must continue to act for a client even though the instructions are imprudent or repugnant. The only basis for termination will be a breach (or likely breach) of professional obligations.”

31. By Douglas White QC in the publication cited above n 11. See the
    discussion below in the text accompanying n 74.

³² White, above n 11 at 24.
³³ Text accompanying n 14.

of litigation lawyers from Rule 4.2.1(e) forces them to continue with a hopeless case, amounts to nothing more than a reiteration of what we already know from Rules 4.2.2 and 4.1.1(c) – the hopelessness of a case (its ‘merits’) is no good cause for terminating a retainer.

The second comment on the hopeless case/impecunious purchase explanation of Rule 4.2.1(e) is that the explanation (understandably) shies away from confronting the fact that even for non-litigation lawyers, Rule 4.2.1(e) provides a good cause to terminate only when the client’s chosen course of action is both “highly imprudent” and “may be inconsistent with the lawyer’s fundamental obligations”. The strange inclusion of this second, required limb of Rule 4.2.1(e)’s good cause for terminating a retainer (for even non-litigation lawyers) makes the impecunious purchase example quite inapposite – there is nothing inconsistent with a lawyer’s fundamental obligations that could be said to be involved in such a transaction.

To complete the picture, it should be pointed out that the obvious problems caused by the “may be inconsistent with the lawyer’s fundamental obligations” second limb of Rule 4.2.1(e) would not be solved even if the Law Society adopted the suggestion that is given in the main textbook resource on New Zealand legal ethics³⁴ about what the authors describe as the “somewhat awkwardly worded” Rule 4.2.1(e). This suggested cure would substitute “or” for “and” in the Rule, so that it would then read: “... highly imprudent or may be inconsistent with the lawyer’s fundamental obligations.” It is true that this would provide some clarity for non-litigation lawyers.³⁵ Yet it would give even more support to the remarkable proposition that, in litigation matters, there is no good cause to terminate a retainer on the basis that the lawyer is being instructed to assist the client in a way which may be inconsistent with the lawyer’s fundamental obligations.³⁶

All in all, I suggest that Rule 4.2.1(e) would have given rise to far fewer problems of interpretation if something resembling its initially proposed version had been adopted.³⁷ That draft drew no distinction between litigation and non-litigation lawyers (in keeping with the formulation of the cab rank rule that was ultimately adopted as Rule 4)³⁸ and provided that good cause for (any) lawyer’s termination of a retainer exists in the case of “the adoption by the client against the advice of the lawyer of a course of action which is in the view of the lawyer highly imprudent or repugnant”.

³⁴ Webb et al, above n 12 at 180.
³⁵ Instructions to complete the impecunious purchase would amount to

good cause to terminate the retainer, even without any suggestion that such instructions may be inconsistent with the lawyer’s fundamental obligations.

36. Because that would, on its own, expressly become an insufficient ground
    for terminating a retainer.

³⁷ By Duncan Webb, above n 8 at 40, as his proposed Rule 3.5.
³⁸ See above, text accompanying n 11.

Having said all this about Rule 4.2.1(e), I recognise that the natural tendency is to simply ignore the unfortunate wording of the Rule. After all, the Law Society surely could not knowingly be forcing even litigation lawyers to continue to act when the client’s chosen course of action may lead the lawyer to act inconsistently with his or her fundamental obligations. An extreme example of such a case would be the client’s insistence that the lawyer go along with an offer of perjured testimony. If nothing else, such an instruction would fall within the scope of Rule 4.2.1(a) (set out above)³⁹, which allows a lawyer to terminate the retainer (whether engaged in a litigation matter or not) when the client’s instructions require the lawyer to breach any professional obligation. If push came to shove, Rule 4.2.1(a) would (rightly) be given precedence over Rule 4.2.1(e). This being the case, we can move on from Rule 4.2.1(e) with the hope that someday it may be redrafted.

Yet even when we ignore Rule 4.2.1(e) it is still apparent that the Rules provide no support for either of the following propositions which are relevant to our two questions of the need to follow instructions and the right to terminate a retainer:

(a) If the client gives a litigation lawyer an instruction which, although not requiring the lawyer to breach a fundamental obligation, does require the lawyer to take some step that the lawyer considers to be tactically unwise and against the client’s interests, the lawyer may with impunity act contrary to that instruction.
(a) A litigation lawyer who receives an instruction of the sort just hypothesised may, for that reason, terminate the retainer.

McLoughlin is in accord with the Rules in rejecting the first of the above propositions. The judgment provides no support for a lawyer’s ability to proceed contrary to a client’s instruction. However, in accepting the second proposition by recognising a lawyer’s right to terminate a retainer in the circumstances outlined above, McLoughlin is in conflict with the Client Care Rules. Likewise, as is now discussed, on this same point McLoughlin is at odds with the judgment of the Supreme Court in R v Condon⁴⁰ – a fact which increases the difficulty of my ultimate aim of arguing that the McLoughlin approach to this issue is the preferable one.

(b) The Supreme Court restricts a lawyer’s right to terminate

The Supreme Court judgment in R v Condon was delivered in 2006 – after the Court of Appeal judgment in McLoughlin but before the Client Care Rules were adopted. Condon is aligned with the current Client Care Rules in denying a lawyer’s ability to terminate a retainer in response to an instruction which, although not requiring the lawyer to breach a fundamental obligation, does require the lawyer to take a step that the lawyer considers to be tactically unwise or against the client’s best interests. The Supreme Court held that the defendant’s lawyer had

³⁹ Text accompanying n 9.
⁴⁰ R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.

been wrong to withdraw (and the Judge had been wrong to permit that withdrawal) when the most that could be said was that the client was adamant that the lawyer should present a particular defence (a conspiracy among prosecution witnesses to wrongly obtain the defendant’s conviction). This was so even though the Court accepted that⁴¹ “any objective observer, and certainly a competent lawyer,” would have agreed with the defendant’s lawyer that this ‘conspiracy among witnesses’ defence was not the solid defence that the defendant thought it to be.⁴²

Accordingly, it can no longer be safe to rely on McLoughlin’s acceptance of a litigation lawyer’s right to terminate a retainer in response to an instruction that the lawyer believes is tactically unwise. Condon supports the subsequently enacted Client Care Rules in denying any such justification for a termination.

(c) Hall accepts a lawyer’s right to refuse to follow instructions

Despite going against McLoughlin’s approach to the question of the right to terminate a retainer, the Supreme Court judgment in Condon is in complete agreement with the other important conclusion reached by the Court of Appeal in McLoughlin regarding the need to follow a client’s instructions. It is this fundamental proposition that has more recently been contradicted by the Court of Appeal in Hall v R.⁴³

A necessary preface to discussion of Hall is the recognition that this judgment was directed at reviewing and clarifying the correct approach to the all too common criminal conviction appeals in which the defendant argues that his or her conviction was a miscarriage of justice, brought about by some error in the way defence counsel handled the case at trial. Hall held that (generally)⁴⁴ a miscarriage will have occurred whenever counsel failed to follow a specific instruction which can be categorised

At [27].

At the time of the judgment in Condon there were no New Zealand practice rules providing guidance on when a lawyer could terminate a retainer. At [28; n 18] the Supreme Court referred to a passage in R v de Bruin CA168/04, 7 March 2005 in which the Court of Appeal – when discussing what amounted to a “professional embarrassment” of the sort that would justify a lawyer’s termination of the retainer – cited the Code of Conduct of the Bar of England and Wales. That source lists: counsel’s lack of experience; availability of resources; instructions in conflict with the Code of Conduct; matters in which the barrister is personally involved; risks of conflict of interest or disclosure of confidential information; and certain difficulties in obtaining payment of fees.

Hall v R, above n 21.

At [68] the Court cited R v Chin CA43/04, 10 June 2004 as an example where counsel’s failure to abide by the client’s fundamental decision to give evidence would not (given the weakness of the defendant’s proposed evidence) have given rise to a miscarriage.

as involving one of three “fundamental decisions”. These fundamental decisions are those:⁴⁵

• relating to plea
• electing whether the defendant will give evidence
• to advance a defence based on the defendant’s version of events.

But beyond this, a decision by counsel not to follow his or her client’s instructions on⁴⁶ “less fundamental trial decisions” will generally not give rise to a miscarriage of justice. In such circumstances, a miscarriage will only result if the step taken by the lawyer (contrary to instructions) was (i) not one that a competent lawyer would have taken, and (ii) may have affected the outcome of the trial (ie, the conviction).⁴⁷

As a statement of the law governing criminal appeals, there may well be no reason to question this ratio from Hall. But because it is so likely that the judgment will be seen as setting forth the Court’s view on a lawyer’s ethical responsibilities, there is much to criticise. I focus on a remarkable passage in the judgment which could easily have been avoided if the Court had been content to deal only with the issue of when counsel’s error in failing to follow instructions would or would not amount to a miscarriage of justice. However, for whatever reason, the Court seemed to feel the need to suggest that, far from amounting to an error, it is actually a lawyer’s right – if not his or her duty – to consciously disregard specific instructions given by a client. This approach culminated with the Court’s approval⁴⁸ (in the face of its rejection by all the litigants in the appeal (except the Crown) – including the New Zealand Law Society, the Legal Services Commissioner, the New Zealand Bar Association and other intervenors)⁴⁹ of the rallying cry of the United Kingdom Court of Appeal in R v Farooqi⁵⁰ that trial counsel is not simply “the client’s mouthpiece”;

⁴⁵ At [65].
⁴⁶ At [77].
⁴⁷ At [77].

⁴⁸ At [76]. White J (who delivered the Court’s judgment in Hall) had given

earlier approval of R v Farooqi [2013] EWCA Crim 1649, [2014] 1 Cr App R 8 when delivering the judgment in Tranter v R [2014] NZCA 602 at [56]. The only other pre-Hall authority of which I am aware that suggested a right to override a client’s instructions is R v Ashbrook CA158/00, 25 October 2000 at [13].
⁴⁹ See the first sentence of [76] of Hall.
⁵⁰ See the passage from R v Farooqi, above n 48 that is set out below at text

accompanying n 58. For the United Kingdom approach to solicitors (as opposed to barristers) acting for the defence, the Law Society (UK) directive is in accord with McLoughlin: comply with the instruction or withdraw. See Proulx and Layton, above n 25 at 118–119. In Farooqi the Court appeared to be aware of this divergence in the rules applicable to barristers and solicitors, because at [109] the Court stated shortly after the passage set out at text accompanying n 58: “In the trial process, the advocate is subject to some elementary rules. They apply whether the advocate in question is a barrister or solicitor, and, to the extent that the rules of professional conduct of either profession are not consistent, they should be made so.”

and, not being a mere mouthpiece, it is therefore up to counsel to make the ultimate decisions as to how the litigation is to be conducted.

(d) Peripheral issues in Hall

In the lead-up to its ultimate support for Farooqi and the ability of counsel to disregard a client’s instructions, the Court in Hall referred to three related issues which, once noted, need not further concern us. The first is that, as accepted by earlier authorities,⁵¹ the effective handling of a client’s case would be impossible if he or she had to be consulted at every turn during preparation for and during the trial itself. No-one would argue with this and, as Hall points out,⁵² Client Care Rule 13.3 insists that a lawyer must obtain and follow a client’s instructions on (only) “significant” decisions in respect of the conduct of litigation (a label that itself raises questions).⁵³ Nonetheless, it remains the case that nothing in Rule 13.3 (or any other Practice Rule) permits a lawyer to disregard an instruction (“significant” or otherwise) that has actually been given by a client on any aspect of the services for which the lawyer has been retained (unless the instruction calls upon the lawyer to take some obviously improper step, such as misleading the Court).

The second of the three of what I have termed peripheral issues raised by Hall, is the Court’s acceptance that⁵⁴ “counsel have to exercise some judgment on matters such as the approach to cross-examination”. This, again, is uncontroversial and, as confirmed by the authorities cited in Hall,⁵⁵ any convicted defendant who asks for a new trial on the basis that his or her lawyer did a poor job of cross-examining the Crown witnesses will have a tough time convincing anyone that this amounted to a miscarriage of justice. That conclusion, however, says nothing about the not unknown situation where the lawyer actually disregards clear instructions from the client which insist that, for example, specific

Hall v R, above n 21 at [75; n 68] relied on R v Pointon, above n 24 at 112 and Manukau v R [2013] NZCA 605 at [3]. See too the discussion of the Client Care Rules in the discussion under heading 2(a) of this article. Hall v R, above n 21 at [71]. See above, text accompanying n 4. See too n 27 above.

It would be wrong to assume that Rule 13.3’s reference to “significant” litigation decisions matches precisely the same three “fundamental” decisions which Hall decided were the only matters which will normally lead to a miscarriage of justice if the client’s instructions concerning them are not followed (see text accompanying n 45). That this is so is evident from the two examples of “significant decisions” which appear in the footnote to Rule 13.3. Neither can be said to match Hall’s three “fundamentals”. These two examples are (i) counsel agreeing to a consent order, and (ii) counsel disclosing that the client has previous convictions or other charges pending.

At [75].

At [75; n 69]. See similarly Ikinepule v R [2017] NZCA 125 at [25]; H (CA609/2016) v R [2017] NZCA 415 at [15] and following.

questions be asked in a cross-examination.⁵⁶

The third and final issue I wish to put to one side before confronting Hall head on, is simply to highlight the unusual circumstances of Farooqi which, otherwise, might be unknown to the reader. Let me start with the reminder that in the particular class of case with which Hall is most concerned, the usual argument by the convicted defendant is that defence counsel failed to follow a specific instruction about the conduct of the case. We know that Hall isolated three “fundamental decisions” upon which instructions must be followed and contrasted these with less fundamental decisions where the lawyer’s failure to follow instructions may not only be excused but may indeed be the proper course for the lawyer to adopt.

Farooqi is almost the other side of that coin. The convicted defendant was not complaining about any failure by his lawyer to follow specific instructions. The argument made by Mr Farooqi in this (unsuccessful) appeal was, rather, that his lawyer’s outrageous and aggressive behaviour in attacking every aspect of the Crown case had so severely prejudiced the jury against the defendant that his conviction could not be upheld. The (UK) Court rejected this argument by highlighting how the trial Judge’s directions to the jury had made it crystal clear to them that defence counsel’s bizarre conduct could not legitimately be laid at the defendant’s door. The Judge had achieved this by telling the jury that there was no reason to suspect that the defendant was himself the author of anything said at trial by his lawyer.⁵⁷ The appellate Court expanded on the trial Judge’s remarks and, in so doing, took the position that was subsequently adopted by our Court in Hall. Here is a bit more of the “not the client’s mouthpiece” passage from Farooqi:⁵⁸

The question was raised whether [defence counsel] discussed his proposed forensic strategy with his client. However, whether he did or not, and, even assuming that his client agreed or encouraged it, the client’s “instructions” were irrelevant. The client does not conduct the case: that is the responsibility of the trial advocate ...

... the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client ... “instructs” him ... but, save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible

As occurred in R v Miers CA15/92, 1 December 1992, at 6, where the Court relied on McLoughlin and allowed the appeal due to the lawyer’s failure to follow the instructions – despite accepting that many of the questions insisted upon by the defendant would have been prevented by the trial Judge as irrelevant or improper. The Court earlier accepted that the option (not taken by defence counsel) of terminating the retainer had been an available response to the client’s instructions, at 7.

At [91], [95].

At [107]–[108] (emphasis added).

evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone, remains responsible for the forensic decisions and strategy.

The circumstances of Farooqi were, then, hardly typical of the majority of cases with which the Court in Hall was concerned. Nonetheless, there can be no denying that the ‘no mere mouthpiece’ sentiment expressed in that judgment and adopted in Hall reflects a well-established school of thought, at least in the United Kingdom. It can also not be denied that, as is evidenced by Hall itself, support for this approach can be found in New Zealand. However, I hope to have shown that by far the weight of earlier authority (under the McLoughlin approach)⁵⁹ and the message of the Client Care Rules⁶⁰ is dramatically opposed. These latter sources tell us that the clear duty of a litigation lawyer is to obtain instructions on significant matters and to follow any instructions (regardless of the level of “significance”) that have actually been received.

The result of the McLoughlin approach may well be that lawyers can accurately be described as the mouthpiece of their client. But, by itself, this tells us very little. I suggest that we should take care before assigning too much credit to whatever are the apparently pejorative connotations accompanying the ‘mouthpiece’ label. I see no reason why lawyers who act on their instructions cannot concurrently achieve success in their role as ‘advocates’. The two concepts are not mutually exclusive.

(e) The client-control/lawyer-control debate

It will not surprise many readers to learn that there is a continuing academic debate between what are termed⁶¹ client-control and lawyer-control approaches to various issues in legal ethics. The questions dealt with in this article provide such an obvious practical focus for invocation of that debate that it would be remiss not to refer to it at least briefly. In what I have found to be the best relevant discussion⁶² the arguments on both sides are so comprehensively treated as to render unnecessary any lengthy recap here. As a few highlights, though, consider the following:

• Joining Farooqi on the flagship of the ‘no mere mouthpiece’ approach⁶³ are the following Rules 17.1 and 17.2 of the Australian Solicitors’ Conduct Rules of 2015:⁶⁴

⁵⁹ See above n 20.

⁶⁰ Commencing at text accompanying n 4.
⁶¹ Terminology used by Proulx and Layton, above n 25 at 130 and Ross,

above n 25 at 259. Near synonyms include “lawyer-centric” (Alice Woolley Understanding Lawyers’ Ethics in Canada (LexisNexis, Markham Ontario Canada, 2011) at 57; “lawyer-statesman” (Webb et al), above n 12 at 45.
⁶² Proulx and Layton, above n 25 at 114 and following.
⁶³ See too Ross, above n 25 at 277–278, citing Australian authorities. For

Canadian support for the ‘no mere mouthpiece’ approach, see Woolley, above n 61 at 56, and Proulx and Layton, above n 25 at 120 and following.
⁶⁴ Emphasis added.

17.1 A solicitor representing a client in a matter that is before the

court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.

17.2 A solicitor will not have breached the solicitor’s duty to the

client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgments called for during the case so as to:

17.2.1 confine any hearing to those issues which the solicitor believes to be the real issues;

17.2.2 present the client’s case as quickly and simply as may be consistent with its robust advancement; or

17.2.3 inform the court of any persuasive authority against the client’s case.

• In counterbalance are some of the governing Canadian provincial Law Society Rules which, to one degree or the other, reflect the same message as our Client Care Rule 13.3 – requiring a lawyer to obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation.⁶⁵

As to the debate itself, the strongest points in favour of the ‘lawyer-control’ model are:

• the value of a lawyer’s training and experience; the inevitable need for quick decisions to be made during a trial; the relative objectivity of a lawyer when compared to the totally partisan view of the client; and the general responsibilities of a lawyer not to waste court time with hopeless tactical manoeuvres.

I accept that these arguments have weight but, as with so many controversies that are fairly evenly balanced, I do little more than reveal my preference for a client-control model. The various extended discussions of this issue can be fairly summarised by Proulx and Layton’s⁶⁶ view that withholding the ultimate decision-making authority from the client represents a misguided paternalism. After all, it is the client whose freedom, resources, reputation, or relationship is at stake, not the lawyer’s.

It is still worth pointing out that adopting one or the other of the client-control or lawyer-control views does not necessarily dictate a person’s response to the two particular questions discussed in this article (the need to follow instructions; the right to terminate a retainer). In passing on to give my views on how these questions should best be answered,

Proulx and Layton, above n 25 at 115–116. Proulx and Layton, above n 25 at 132–133.

I am perhaps fondly hoping to convince even those who see themselves as adherents of the lawyer-control approach, that aspects of the current position in New Zealand should be changed.

5 The McLoughlin approach is the best answer to both questions (a) The need to follow instructions

By now it will be clear that on the question of the need to follow instructions I am urging that the clear and simple message from McLoughlin (instructions must be followed) is preferable to that offered by Hall (except in the case of three fundamental decisions, instructions normally need not – indeed sometimes should not – be followed).

Even if we put to one side potential appeals to implied terms in the contract of retainer,⁶⁷ I am convinced that Hall is a poor choice for lawyers who seek guidance on their professional responsibilities. The core problem in using Hall as a guide is its uncertainty. The most obvious source of this uncertainty is the third of the three fundamental decisions upon which the judgment says a client’s instructions must be followed, namely that of advancing a defence on the defendant’s version of facts. But just what is encompassed by this terminology?

I have already referred to the not uncommon problem of a client’s instructions that a lengthy list of specific questions be asked of a particular witness.⁶⁸ That is an instruction that could well be categorised as the client’s exercise (however naive or misguided) of the right to put forward a defence based on his or her version of events. Indeed, it is ironic that in the central passage from Farooqi set out above,⁶⁹ the (UK) Court chose the decision of whether or not to call a witness as the third of the United Kingdom’s three sacrosanct areas where a client’s instructions must actually be followed (in contrast to Hall’s formulation of advancing a defence on the defendant’s version of facts).

The same point can be argued for a wide but uncertain list of issues, such as instructions to interview or summon particular witnesses (and what topics to explore with those witnesses before and during the trial);⁷⁰ whether to put forward the defence case on what even the jury

⁶⁷ In R v Hookway, above n 24 at [23] the Court said: “The right of the

accused to instruct counsel (and to withdraw instructions) is inherent in the contractual relationship created when a client engages the services of counsel.” See too Ross above n 25 at 274: “Lawyers are agents of their clients and are under contractual obligation to them. Therefore they are required to do what their clients instruct them to do within the terms of the contract. Failure to follow instructions can lead to disciplinary or civil action.” See too Proulx and Layton, above n 25 at 127.
⁶⁸ Above text accompanying n 56.
⁶⁹ Above text accompanying n 58. Adding further fuel to the argument of

uncertainty is the fact that in this passage the Court in Farooqi, above n 48 at [108] only went as far as saying that “perhaps” the decision about calling a particular witness was one to be made by the client.
⁷⁰ As in R v Wilson CA216/01, 31 October 2001.

might discover are theoretically conflicting criminal law defences (lack of intent/self-defence); whether and how to attack (or bolster) any particular witness’s veracity; whether to ask the Judge to direct the jury on the possibility of convicting on a lesser, included offence;⁷¹ and even whether to elect trial by jury; apply for a change of venue; or whether to ask for separate trials of charges that are originally charged together; or (as Hall itself seemed to recognise), whether to apply for a voir dire.⁷² This list does not purport to be complete.

The inevitable uncertainty in predetermining which of the myriad of potential issues can properly be included in Hall’s third fundamental decision (advancing a defence on the defendant’s version of facts) creates a minefield for lawyers. But that is only the start of the difficulties.

Before a lawyer can rely on Hall and disregard a client’s instructions (because the lawyer is ‘no mere mouthpiece’), he or she must somehow draw the further distinction that is necessary even when dealing with one of the “less than fundamental” decisions. Hall itself accepted that a failure to follow instructions on this amorphous class of lesser decisions can (due to the circumstances of the particular case) result in a miscarriage of justice. Against that possibility is to be contrasted a failure to follow instructions on what Farooqi termed⁷³ “forensic strategy”, which is apparently within the sole control of the lawyer. How can any of this be recommended as an ethical guide for lawyers?

The most obvious path for a lawyer to take is to abide by the simple message that is conveyed by the Client Care Rules – follow to the letter every instruction given by a client. This advice should be taken even by a lawyer whose instincts support a lawyer-control view of his or her relationships with clients, at least if the lawyer wishes to minimise the chances of facing disciplinary proceedings brought by the Law Society. For client-control lawyers the same choice will be more palatable.

Of course, this uncompromising viewpoint cannot stand alone. Everyone would agree that some qualifications must be added to the black and white conclusion that all instructions must be followed. We have already seen that the Client Care Rules themselves permit a lawyer to reject instructions (and terminate the retainer) in the various situations listed in Rule 4.2.1, the most obvious being, per Rule 4.2.1(a), an instruction that requires the lawyer to breach any professional obligation. Accordingly, a more complete answer to the ‘need to follow instructions’ question is that all instructions must be followed except any instructions that provide the lawyer with good cause to terminate the retainer. Having thus articulated what the reader will already have recognised as the close connection between the two questions posed in

As in R v Kerr, above n 27.

At [70; n 63] of Hall v R, above n 21, apparently agreeing with R v Walling, above n 24.

Above, quotation accompanying n 58. See too the list at [63] of Hall v R, above n 21.

this article, I proceed to offer my answer to the second of these questions – the right to terminate the retainer.

(b) The right to terminate

As earlier alluded to,⁷⁴ the only justification I can find that has been offered for the Client Care Rules’ prohibition on a lawyer’s ability to terminate a retainer in response to what I refer to as the client’s ‘unwise instruction’ (to take a step that is contrary to the client’s best interests) is that the prohibition promotes the beneficial policy of allowing citizens to litigate hopeless cases.⁷⁵ Now, I have never really warmed to the idea that it is a good thing to waste the time and resources of a court with what are, by definition, ‘hopeless’ cases.⁷⁶ But to avoid that tangential issue let us temporarily accept the correctness of the hopeless case policy. The problem I still see is that the ‘no right to terminate’ position of the Client Care Rules is directly at odds with what must be the sole argument tying the ‘no termination’ rule together with the ‘hopeless case’ policy. That argument must be based on a combination of the cab rank rule and the right to legal representation.

The argument proceeds as follows: It is not enough to simply keep the courtroom doors open to litigants wishing to have their day in court to present their hopeless case. For any sort of meaningful appearance before a court, a lay litigant must be granted the obvious benefit of the expertise of a qualified lawyer. Thus it is, that the cab rank rule requires (in the words of Client Care Rule 4) that lawyers must not, without good cause, refuse to accept instructions from any prospective client. It will be remembered from the earlier discussion of the cab rank rule that Rule 4.1.1(c) states specifically that the merits of the matter are not good cause to refuse to accept instruction.⁷⁷

Text accompanying n 31 above.

Douglas White QC, above n 11 at 24 (in explaining Rule 4.2.1(e)). Likewise, in Lagolago v Wellington Standards Committee 2 [2016] NZHC 2867 at [123], Clifford J said that Rule 4.2.1(e) “reflects, as the [Disciplinary] Tribunal acknowledged, an important latitude to litigators in bringing perhaps imprudent or hopeless cases to court”.

The justification was summarised by Clifford J at [121] by citing Harley v McDonald [2002] UKPC 40; [2002] 1 NZLR 1 (PC) at 29 and saying that if a lawyer could refuse to act in such a case, “the lawyer is herself acting as the Judge of the case” – also the reasoning given in Webb et al, above n 12 at 180. But I have always suspected that we are not really supposed to take the ‘hopeless case’ label too literally. Advocates of the right to take hopeless cases often supplement their remarks by quickly adding that, of course, it would be wrong to promote a case that is so hopeless that it would amount to a time-wasting abuse of the court’s process. There is a hint of this caveat in Lagolago, when Clifford J prefaces the passage quoted above by saying: “Unless a claim is totally groundless ...”. Likewise, the discussion in Webb et al, above n 12 at 180 of the obligation to take on a hopeless case is prefaced by: “In the absence of the defence being so wholly fatuous (so, an abuse of process) ...”.

Above text accompanying n 14.

The application of the cab rank rule therefore provides to the hopeless case litigant the crucial forensic weapon of competent legal representation. It is easy to understand why the combined effect of Rules 4.2.2 and 4.1.1(c)⁷⁸ go on to prevent the lawyer, who has been forced to take on the hopeless case, from circumventing the cab rank rule by quickly withdrawing from the retainer without good cause.⁷⁹

But here is the point: the right to counsel, even for the hopeless case litigant, does not include some quite distinct right for the hopeless case litigant to be able to force the lawyer to follow all of that litigant’s unwise instructions on how to present the hopeless case. In other words, the right to present a hopeless case does not include the supplemental right to have that case presented in a hopeless fashion. A lawyer who has been forced by the cab rank rule to take on a case (hopeless or otherwise) should not be subjected to the further imposition of being required to handle the litigation in ways that go against every lesson of the lawyer’s education, knowledge, and experience.⁸⁰ The lawyer who is caught in this situation should be entitled to respond to what I have termed a client’s unwise instructions by terminating the retainer.⁸¹

The current insistence by the Client Care Rules that a lawyer must continue to act, and to do so in accordance client’s unwise instructions, is both unfair and unrealistic. The position taken by the Law Society through the Rules ignores all the detrimental consequences to a lawyer which flow from following instructions which will be viewed by any legally trained observer (such as a Judge or fellow practitioner) as completely unhelpful in promoting the client’s case. As matters stand at present, when confronted by the disdain or criticism of a presiding judge or opposing counsel, the lawyer who is the focus of derision cannot in any meaningful way fall back on the excuse, “I am just following my client’s instructions”. Not only is such an excuse a breach of privilege, it is unlikely to meet with much sympathy. Anyone with experience in

⁷⁸ See discussion at text accompanying n 14.
⁷⁹ As pointed out by Duncan Webb in the commentary to his draft of the

new ‘termination’ rules, above n 8.

80. And probably against Client Care Rule 5.2, which requires lawyers to
    exercise their professional judgment “within the bounds of the law and the professional obligations of the lawyer solely for the benefit of the client” (emphasis added).
81. Although this proposition is stated in a categorical fashion, any reform
    exercise would inevitably be concerned with the particular circumstances that were present in Condon, above n 40 (termination of the retainer on the eve of trial) and McLoughlin, above n 20 (potential application to terminate the retainer in the course of the trial). It is conceivable that such circumstances could be catered for through solutions which would permit the scheduled trial to take place with all participants concerned understanding that any seemingly hopeless arguments or tactics employed by the lawyer were not the product of his or her ineptitude but rather of the desirability of the trial proceeding without adjournment and with a lawyer who has been forced to follow unwise instructions.

the practice of law will be aware that a lawyer who appears to waste court time, run hopeless arguments, call unhelpful evidence, or make puerile objections, will quickly develop a reputation for shoddy practice. Such a reputation is difficult to throw off and can effectively be career-ending. Accordingly, I put forward the view that a lawyer should be granted the right to terminate a retainer in response to unwise instructions from his or her client – whether the case be hopeless or not.

I end by asking the reader to compare the position of a surgeon or an accountant. It hardly needs pointing out that even if we could imagine situations in which either of these professionals were somehow placed under an obligation to take on work for particular patients or troubled taxpayers, no one would suggest that they should be saddled with the additional obligation to comply with the patient’s or taxpayer’s misguided instructions on how the surgery or tax return filing were to be performed. The universal reaction of any observer would surely be to permit the surgeon or accountant to quickly reject the idea of providing any further services in response to such instructions. I can see no reason why the same response should not be available to lawyers.