Lord Brougham was perhaps the greatest, and certainly the most celebrated, advocate of his day. His often quoted speech in his defence of Queen Caroline, underscored the singular duty of an advocate and the concept of undivided loyalty stating: "An advocate, by the sacred duty which he owes his client knows, in the discharge of that office, but one person in the world, that client and none other."1
In reality, the advocate owes a number of duties to the various participants in proceedings. Obviously, the lawyer's primary duty is to the client. The lawyer also owes duties to opposing counsel to, for example, avoid sharp practice or incivility. The lawyer is also an officer of the court and owes duties to the court directly. Good advocacy rarely if ever sees these duties in actual conflict.
Good advocacy in the best interests of the client does not benefit from incivility or sharp practice and certainly never in breaching a lawyer's duty to the court. There are occasions where the advocate steps beyond mere zealous advocacy. In such situations, the court has always retained the inherent jurisdiction to govern both its process and its officers.
In recent years, there has been a growing number of cases that involve requests for costs awards personally against lawyers. The authority to make such an order, while historically part of the inherent jurisdiction of the court, can be found in court rules. In Ontario, rule 57.07(1) of the Rules of Civil Procedure, for example, expressly empowers a court to order a lawyer to personally pay costs where the lawyer "causes costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default."2
The order itself can take a variety of forms. First, the court can make an order that disallows costs between the lawyer and client or direct the lawyer to repay to the client money on account of costs. Second, the court can order the lawyer to reimburse the client for any costs that the client has been ordered to pay to any other party. Lastly, and the most concerning for the purposes of this discussion, the court can order the lawyer personally to pay the costs of any party.
In family law cases in Ontario, rule 24(9) of the Family Law Rules similarly sets out the various orders that courts can award when a lawyer has "run up costs without reasonable cause or has wasted costs."3 One of those orders is to hold the lawyer personally liable to pay the costs of any party.
The granting of a costs order personally against a lawyer is serious and should only be made with extreme caution. Courts must be mindful of not only the monetary sanction and penal nature of such an order but also the great stigma a decision of this nature carries. Although courts have recognized that they should proceed cautiously when considering whether a personal costs award should be made against a lawyer, the rules today are, arguably, being applied more loosely than perhaps intended.
Notwithstanding that the early development of the law emphasized that an order holding a lawyer personally liable for costs was an exceptional order and subject to a high threshold of egregious conduct in a proceeding, courts appear to have adopted a lower threshold of late that potentially now exposes a lawyer to a personal costs award for merely being a zealous advocate. Zealous and fearless advocacy is to be encouraged. Precedents are made and the law advances on the backs of novel arguments. Courts should, accordingly, be cautious in dampening the vigor and creativity of arguments made or positions taken which, while perhaps not in conformity with standing authority, do not offend any of the duties owed to opposing counsel or the Court itself.
A review of the effect of the rule itself makes it clear on its face that the consideration of the Court necessary for the imposition of a personal cost sanction places the lawyer in an immediate conflict of interest with their own client. In civil and family matters, the general rule is that the losing party pays the costs of the successful party on such scale or amount as the court deems just. In addition, unsuccessful litigants are generally responsible for their own lawyer's bill unless the matter was undertaken on a contingency or there had been a prior agreement. Obviously on one level it is always in the client's interest that someone else, even their own lawyer, pay an adverse costs award or that they not be responsible for their own lawyer's account. A lawyer could not, accordingly, act for a client and argue against such an order on behalf of a client. The rule itself immediately pits the interest of the client against the personal interest of the lawyer.
It has been noted that the differences in the approaches taken by the courts may stem from a tension between the court's inherent jurisdiction and its statutory authority. Courts possess inherent power to manage and control the proceedings conducted before them.4 In that regard, a court's power extends to preventing the use of procedure in a way that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute.5 This, in turn, relates to the court's right and duty to supervise the conduct of lawyers who appear before them and penalize any misconduct that interferes with the administration of justice.
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Footnotes
1. Showell Rogers, The Ethics of Advocacy, 15 L.Q. Rev. 259, 269 (1899) (quoting Lord Brougham).
2. R.R.O. 1990, Reg. 194. The costs rules in Canada's other common law provinces and in the Federal Court of Canada are as follows: Alberta: Alberta Rules of Court, Alta. Reg. 124/2010, Rules 10.49 & 10.50; British Columbia: Supreme Court Civil Rules, BC Reg. 168/2009, Rule 14-1(33); Manitoba: Court of Queen's Bench Rules, Man Reg 553/88 , Rule 57.07(1), New Brunswick: Rules of Court, NB Reg 82-73, Rule 59.13, Newfoundland: Rules of the Supreme Court, SNL 1986, c. 42, Sch D, Rule 55.14(2), Northwest Territories: Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. R-010-96, Rule 644; Nova Scotia: Nova Scotia Civil Procedure Rules, Royal Gaz November 19, 2008, Rule 77.12(2), Prince Edward Island: Rules of Civil Procedure, Rule 57.06(1), Saskatchewan: The Queen's Bench Rules, Rule 11-24(1); and Federal Court of Canada: Federal Courts Rules, SOR/98-166, Rules 404(1),(2),(3).
3. O. Reg. 114/99. For personal costs awards against lawyers in family law proceedings in Canada's other common law provinces and territories, the reader is directed to review the applicable legislation and rules in their respect jurisdiction.
4. See Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41 (S.C.C.); R. v. Anderson, 2014 SCC 41 R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, 373 D.L.R. (4th) 577 (S.C.C.).
5. See Canam Enterprises Inc. v. Coles (2000), 194 D.L.R. (4th) 648, 5 C.P.C. (5th) 218, 51 O.R. (3d) 481 (Ont. C.A.), reversed 2002 SCC 63, [2002] 3 S.C.R. 307, 220 D.L.R. (4th) 466 (S.C.C.).
Originally Published by The Advocates' Quarterly
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