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- Signing Court Orders
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 herself a witness.
Before the case of Martin v. Busenius, 1999 ABQB 100, ethical thought favoured a client centreed 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 in agency law and trumped a mere ethical duty to take instructions. In Martin v. Busenius, the Alberta court enforced an agreement that was to be reduced to court order, where the client had later instructed counsel not to sign it. The lawyer had authority as agent to bind the client to the deal and the order mirrored it1. 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.,  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)
It appears that the duty to sign orders is linked to the role of lawyers as officers of the court.
Still, that feels somewhat unsatisfactory as an answer. Martin cited no precedent for the proposition and Folkes cited only Chrysler Credit, an equally unsupported case of an Ontario Master. Why then should the proper “conduct of legal proceedings” or the proper “processing of orders of the court” take precedence over the obligation of the lawyer to zealously represent the client? The client centreed approach makes it seem that client autonomy is diminished and that, in this context, a lawyer is made a servant of the state rather than of the client.
An answer is partly found in the Rules of Court. Northwest Territories Rule 407(3) and Alberta Rule of Court 9.6 both provide that orders and judgments of the court speak from the moment of pronouncement. Historically, this is probably the oldest rule in the book and explains the immediacy of “Off with his head!” in the time of court scribes. In Folkes, the appellant alleged that the court order was fraudulently back dated when in fact it only referred to the date of pronouncement. Chrysler Credit does rely on the Ontario equivalent Rule. A court order becomes the law from that day forward, whether signed or not.
The pronouncement rule rationalizes the duty to sign orders already granted. However, the duty expressed by the courts draws no distinction between orders granted and orders merely agreed to by counsel. Former Practice Advisor Barry Vogel mused doubtfully in 2000 that a principle of ethics should perhaps prevail over the law of agency in this context but surmised that judgments of the court carried more weight than opinions of the Practice Advisor.
In the result, lawyers appear to have a positive duty to sign court orders which have been granted or agreed, in the absence of a valid objection and notwithstanding the subsequent instructions of the client. In the face of persistent instructions by the client to implement instructions contrary to professional ethics, a lawyer must consider whether to withdraw from the representation. In Folkes moreover, the duty extended beyond the retainer and would be owed even after ceasing to act but, in this respect alone, there may a real distinction from Martin and orders merely agreed to by counsel.
1See also the discussion by the same judge in Neddow v. Weidemann, 2008 ABQB 378, issued after publication of this article