Ethics in Practice: Signing Court Orders

By: Ross McLeod QC, Practice Advisor – Law Society of Alberta

Lawyers owe a duty to the court to sign orders to which they have agreed or which have been granted by the court. In the absence of a valid objection to the form of the order, lawyers must sign them on behalf of the client even though the client later develops a change of heart. This may be so even after ceasing to act or being fired from the retainer.

Have you ever concluded an agreement for your client that is intended to be reflected in an order or judgment only to have the client change her mind? Typically, the other lawyer sends the form of order for consent and, although it looks appropriate, the client says, “Things have changed. He was late picking up the kids. Don’t sign the order!” The dilemma arises from the inherent conflict between the duty of a lawyer to obtain instructions from the client and the duty not to carry out instructions that are contrary to professional ethics. A lawyer as agent for the client may have concluded an enforceable agreement on behalf of that client. If the lawyer followed the subsequent contrary instruction not to sign the order, then in enforcement proceedings the client might suffer costs or other penalties for failing to implement it. It is also a good way for a lawyer to make him or herself a witness.

Before the case of Martin v. Busenius, 1999 ABQB 100, ethical thought favoured a client centered approach, binding a lawyer to act on the client’s instructions. In the absence of an undertaking by the lawyer, no ethical obligation should require the court order to be signed. Compare the conflict between the duties of giving a reasonable time extension to another lawyer and of implementing the client’s instructions to give no quarter.

But case law defined a duty to sign orders and trumped mere ethics. In Martin v. Busenius, the Alberta court enforced an agreement

that was to be reduced to a court order, where the client had later instructed counsel not to sign it. The lawyer had authority to make the deal and the order mirrored it. Veit, J. commented further:

After lawyers agree on the terms of an order, in the absence of exceptional circumstances there is a professional obligation to sign the order which reflects the agreement. (para.4)
In this case, Ms. Martin, through her lawyer, had agreed to the terms of the order that were faxed to her lawyer on December 11, 1998. She was obliged to sign the order reflecting that agreement. (para.25)
The failure to sign an order that had been agreed on is an egregious failure to properly conduct legal proceedings. (para.27)

The notion that lawyers owed a higher duty to the court than to respect client autonomy was reinforced several years later by the Ontario Court of Appeal in Folkes v. Greensleeves Publishing Ltd., [2002] 159 O.A.C. 99. In that case an order granted by the court was approved as to form by the lawyer for a party who later wanted to challenge it. Simmons, J.A. said:

Mr. Folkes indicates that counsel for the respondents acted improperly in endorsing the approval of Mr. Folkes’ counsel on the formal order of this court at a time when Mr. Folkes had indicated he intended to proceed on his own behalf. I reject this submission. In Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd. (1991), 5 O.R. (3d) 65 Master Peppiatt noted that counsel have a professional obligation to the court and other counsel to approve an order to which there is no valid objection even after ceasing to act. I agree with his conclusion. To hold otherwise would create an inappropriate impediment to the proper processing of orders of the court. (para.47)

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Welcome to New Benchers

The Benchers of the Law Society recently welcomed Shirish P. Chotalia, QC and a former bencher Larry McConnell, QC to replace Jim Peacock, QC, past president of the Law Society of Alberta and the Honourable Judge Donna Valgardson.

Shirish Chotalia received her B.A. degrees in English, LL.B. and Master of Laws degrees from the University of Alberta. She was called to the Alberta bar in 1987. She is an Edmonton barrister who focuses on Immigration, Human Rights & Employment law in the law firm of Pundit and Chotalia LLP. She has participated in social justice cases in aboriginal law, religious freedom bases, and deportation of disenfranchised foreign women. She was the Commissioner of the Alberta Human Rights Commission 1989 – 1993. She has taught and written about human rights law.

Larry McConnell, QC was first elected a Bencher in 2003, and served in that role until 2006. He sat on the committees for: Appeal, Credentials & Education, Professional Responsibility, Conduct, Criminal Practice Advisory, and the Family Law Advisory committee among others. He was called to the Alberta bar in 1981, and is a sole practitioner in the McConnell Law Office in Whitecourt, Alberta.

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