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Facilitator's Guide - Criminal Law Case Study (The Guilty Plea)

Opening Paragraph

On Thursday, November 1, 2018, Rebecca Gaines was leaving the courthouse in Milton, Ontario, with her client, Jim Kelly, when he loudly accused her of not doing enough to represent him.  Jim had just pleaded guilty to assault, in accordance with a plea bargain that Rebecca advised him to take.  Jim had previously admitted to Rebecca that he had started the fight that led to the assault charges, but was concerned that a conviction may affect his Canadian citizenship application.  After a heated conversation, Rebecca told Jim she would no longer represent him.  When Jim’s new lawyer, who was making an application to strike the plea, sent Rebecca a letter outlining her former client’s allegations of ineffective representation, she wasn’t sure how to respond.
Objectives
  1. This case is intended for a study group discussion session on professional responsibility in Criminal Law.
  2. Participants will be expected to put themselves in the position of the lawyer, Rebecca Gaines in the case and to identify and analyze the legal, professional, and personal challenges she faces.
  3. Participants will also be expected to develop alternatives and an action plan for resolving the issues in accordance with the lawyer’s professional obligations under the Rules of Professional Conduct.

Rules of Professional Conduct:
  • Competence, rr. 3.1-1, 3.1-2
  • Confidentiality, Confidential Information, r. 3.3-1
  • Optional Withdrawal, r. 3.7-2
  • Withdrawal from Criminal Proceedings, r. 3.7-4
  • Manner of Withdrawal, rr. 3.7-8, 3.7-9
  • Making Services Available, r. 4.1-1
  • Advocacy, r. 5.1-1, Commentary [9] and rr. 5.1-2(b), (e)
  • Agreement on Guilty Plea, r. 5.1-8
  • Notice of Claim, r. 7.8-2
 
Suggested Discussion Questions
Assume you are the lawyer in the situation and answer the following questions with reference to the relevant Rules of Professional Conduct:
  1. How would you respond if your client admitted to an offence with which he or she was charged and asked, “What can you do for me?”
  2. What would you do if a client who retained you on a criminal matter expressed concern about the effect of a possible conviction on his or her immigration status?
  3. What considerations would you take into account if your client wanted to have a family member or friend present during a discussion about a plea bargain?
  4. What steps, if any, would the lawyer need to have taken before entering into an agreement on guilty plea?
  5. How severe would the breakdown of your relationship with a client need to be before you decided to terminate the relationship?  What steps, if any, would you need to take to end the relationship?
  6. If you became aware that a former client was making an application to strike a plea, what would you do?
  7. If a client sought to retain you to make an application to strike a plea, would you feel professionally obliged to take the case?  What would you do before accepting the retainer?