Justice Blais refused the application. In doing so, several points emerged as determinative. First, he affirmed that counsel requires the consent of the court to withdraw from a case. This point yet again confirms the law in this area, and yet again marks out British Columbia as the only jurisdiction in Canada where courts continue to hold otherwise. Second, Blais J. noted that counsel had waited until the eleventh hour to bring the application, and provided no explanation for this delay. The cautionary point here is that counsel must act quickly in getting off the record, and if the application is brought late in the day an effort should be made to explain why steps could not be taken earlier. Failure to do so is problematic because late withdrawal typically causes harm to the client, the other litigant and the judicial system.

Justice Blais's third theme, and the most interesting to GFN, came through like a foghorn in his repeated observation that counsel provided no real explanation as to why she felt it necessary to get off the record. He concluded with the rather stern admonition that "when a lawyer wishes to cease representation in a case, he mst state grounds for doing so, and those grounds must be reviewed by the Court". The failure to articulate a clear reason for seeking to withdraw in combination with the lateness of the application was a fatal combination.

While the judgment in Singh may be correct on the facts, a caveat must be imposed on Justice Blais' suggestion that counsel need state the grounds for getting off the record. Counsel can certainly do so if there is no risk of disclosing confidential information. S/he can also do so if the client waives confidentiality with respect to the information to be disclosed. But the matter becomes difficult where the reasons for withdrawing involve confidential matters and disclosure would violate solicitor-client privilege. Numerous cases, codes of professional conduct and ethics texts make clear that counsel cannot breach client confidences in setting out the grounds for withdrawal. The result may be that counsel seeking to withdraw for good reason is placed in a bind. Because s/he cannot articulate a detailed justification to the court, the court is unable to fully assess the merits of the application. The risk is that the court will dismiss the application and counsel will be forced to stay on the case despite the existence of a problem that undermines the effectiveness of the representation.

What might counsel have done to avoid this problem in Singh? Assuming that there was a good basis for getting off the record (something that Justice Blais clearly had his doubts about), she should have taken one or more of the following steps.

First, she should have asked her client for permission to reveal the nature of the stated conflict of interest. In many instances, revealing the nature of a conflict involves no harm to the client. However, if any risk of harm existed, she would have been well-advised to obtain independent legal advice for her client with respect to the matter.

Second, it might have helped to have separate representation for the client at the hearing. Perhaps the client felt that the conflict was serious enough that the representation was compromised and wished to take this position at the hearing. It is also possible that the client in fact wished to terminate the retainer, in which case his lawyer would be released from her obligation without the need for the consent of the court.

Third, counsel should have provided information as to the advice received from her law society. The receipt of advice in support of withdrawal will carry great weight with a court, whereas the failure to disclose the law society's opinion allows for the inference that the opinion was adverse to counsel's position on the application.

Fourth, counsel should have considered retaining someone else to argue the application. Doing so provides the court with some assurance that the application is not totally without merit. Moreover, it avoids the difficulty that comes when counsel's reasons (or lack thereof) for getting off the case are called into question. Arguing an application where one's own credibility is in issue is an untenable position.

Finally, counsel should have made clear to the court that she could not reveal the precise reasons for her application without divulging confidential information. Alerting the court to this legitimate problem might well have earned her a more sympathetic hearing. Certainly, her failure to provide an explanation for her desire to get off the record would not have weighed so heavily against her.

Singh is an excellent example of an ill-prepared application that ended in disaster. In fairness to counsel, it may be that her experience in other courts or other jurisdictions led her to expect a less searching assessment of the merits of her application. But this excuse only goes so far. Courts are justified in expecting counsel to provide a good reason for getting off the record, especially when the application is brought at the last minute and will result in inconvenience to the client and the court. The failure to do so, or to at least explain that privilege precluded counsel from providing a full explanation of the problem, ensured disaster.