Lawyers from the Yukon and across the country argued before the Supreme Court of Canada on Tuesday about whether defence lawyers can be ordered to continue representing a client who can't pay.

The issue arose after a territorial court judge would not let legal aid lawyer Jennie Cunningham withdraw her services after a client was stripped of his legal aid funding.

Cunningham's lawyer, as well as law societies from British Columbia, Ontario and the Yukon, argued before the Supreme Court that judges should not be allowed to interfere or even question lawyers about their relationships with their clients.

Privileged matters at stake

"We can't sort out the question of whether the client's telling the truth when the client says it's a legal fee problem, or the lawyer's telling the truth when he says it's an ethical problem," Leonard Doust, who represented the Law Society of B.C., told the court.

"The court can't inquire into that. That invariably involves privileged matters as between the solicitor and his client."

Instead, Doust said, law societies and bar associations should review cases to see if the lawyers' reasons for quitting are valid.

But the federal government, which also appeared before the court, argued that lawyers should not be allowed to quit over money issues just before an important trial is set to take place.

"The issue here is very narrow: it's about a court's jurisdiction to say no when the issue is about fees or retainer," federal lawyer Ron Reimer told the Supreme Court.

Denied request to quit

In May 2006, Cunningham was representing an accused child molester when she asked territorial court Judge Heino Lilles to remove her from the case because her client's legal aid funding had been discontinued.

The Yukon's legal aid society had found out the man was working but had not reported his income. As a result, the society advised that the man's counsel — Cunningham — was no longer authorized to provide legal services to him.

But Lilles ruled that the case was too close to trial and denied Cunningham's request, effectively ordering her to act as the man's lawyer without pay.

At the time, Lilles was concerned that the victim, a six-year-old girl, was supposed to testify as a witness, and the man could be in a position to cross-examine her if he ended up representing himself in court.

The man pleaded guilty before the trial began, but Cunningham had already appealed Lilles's order to the Yukon Supreme Court. That court sided with the judge, and the Yukon Court of Appeal overturned that decision in 2008.

The Court of Appeal ruled judges should not be able to insist that lawyers have to continue representing clients who cannot pay for legal services.

"If a counsel is not going to get involved until his complete retainer is in place, then the courts will be faced with many more situations of unrepresented accused coming before them," Gord Coffin, Cunningham's lawyer, told the court on Tuesday.

The Supreme Court is expected to reserve its judgment, meaning a decision may be months away.