Recently, Sean “Diddy” Combes’s lawyer applied to be removed as counsel in the former music producer’s sex-trafficking case. The lawyer, Anthony Ricco filed an affidavit with the court stating “Under no circumstances can I continue to effectively serve as counsel for Sean Combs”.
Ricco cited no further specifics to the court. Reaction online views this development as an indictment of Diddy and his case. People seem to believe that his lawyer must have seen something in his work on the case indicating Diddy is clearly guilty or that the offences are particularly heinous. Some people point out that Ricco once represented Osama Bin Laden and joke: how bad the case against Diddy must be for a lawyer who represented Osama Bin Laden to refuse to represent this guy.
Ricco’s refusal to provide the court with any further details seems to be taken as something further nefarious.
But the reasons a lawyer will get off the record are numerous. And the reason he or she will not be specific in giving reasons to the court or the public are real, and important.
From the perspective of Canadian criminal law: why do lawyers leave cases, and what is the process for doing so?
A lawyer is ethically and legally permitted and sometimes obligated to get off the record in a criminal case in certain circumstances. The reason is usually broadly referred to as a “conflict”. If the lawyer is in conflict, he or she cannot continue on the case. “Conflict”, though, can mean many different things. Here are some examples:
Conflict with Respect to a Justice System Participant:
If the lawyer has a prior relationship (usually professional) with a justice system participant other than his or her client, this may cause a conflict such that the lawyer cannot act. As a most obvious example, if the alleged victim is a current client of the lawyer in another case, and the lawyer would have to cross-examine the alleged victim to defence the current client: that is an obvious conflict of interest.
Breakdown in the Solicitor-Client Relationship
Most other conflicts can be put in this category. The breakdown can arise from many different sorts of circumstances. For example, if the client asks the lawyer to do something unethical in forwarding their defence, this could make it impossible for the lawyer to continue to act. Another example: if the client loses faith in the lawyer or expresses such a loss of faith, this could signal a breakdown. Or if the client is unable or willing to give adequate instructions on which the lawyer can act. Or if the client refuses to accept the legal advice of the lawyer and is adamant that the case be run in a way that conflicts with the lawyer’s advice, this could signal a conflict.
Canadian courts are very good about respecting solicitor-client privilege. It is very common that the circumstances which gave rise to the conflict will be based on something discussed between lawyer and client, which is protected by solicitor-client privilege.
The leading case in Canada is called R. v. Cunningham, 2010 SCC 10, and it holds that if the lawyer, in requesting to be removed from the record, puts forward ‘ethical concerns’ as the reason, then the Court should grant the application without asking any more questions.
While in a case like Diddy’s, people may speculate about the reason for the withdrawal of the lawyer from the case, at least in Canada, those with knowledge of how things actually work know that there could be any number of reasons why a lawyer may be allowed or even required to get off the record. While I cannot speak for Diddy’s lawyer or Diddy’s particular case, the client being “too guilty” is not really a reason a lawyer gets off the record.
It is a lawyer’s ethical duty to defend a client to the best of his or her ability within the confines of the rules of professional conduct and ethical practice. Criminal defence lawyers do not want to act as gatekeepers or as judge and jury, deciding which accused person is worthy of a strong defence. Abandoning a client because the case is too is contrary to the ethos that most criminal defence lawyers hold.