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The Ethics of Diversion Clients

The vast majority of people charged with shoplifting (theft under) small amounts of merchandise and possession of minimal amounts of marijuana, provided they have no prior police history, are eventually offered entry into a program generally referred to as diversion (in Toronto, this program is called Operation Springboard). In this program, the charged individual is asked to complete certain tasks (this may include a charitable donation, some community service, participation in a short course, etc.) and, upon completion, the Crown will stay or withdraw the charges. This is usually a good deal for the individual as they avoid a long court process and the possibility of being found guilty in a criminal court. In most cases the individual does need to accept some responsibility for wrongdoing.

I receive calls all the time from people who will likely be candidates for diversion. Ethically, I do not feel it is right to take them on as a full-paying client when I expect the charge will be diverted thus requiring a small amount of work on my part. Generally a client does not need a lawyer to go through the diversion process either. There are certainly cases where a charge is borderline and may require some discussions with the Crown (who has the full authority to determine if a charge is to be diverted) – those cases do not raise this ethical issue as their is then an added value to having counsel.

What I usually do is explain to the client that they are likely a candidate for diversion and that they can likely handle things themselves (if by chance they are not offered diversion then they can come back and speak to me). I do explain that hiring a lawyer at the outset can provide peace of mind and also avoid the necessity for them to appear in court (pursuant to a designation under s. 650 of the Criminal Code, although cases may arise where they need to appear, and many courthouses require their presence to meet with a diversion worker. I then quote a “diversion-only” rate as well as my rates should more work be required. This approach has resulted in a few clients, but has likely costed me a few retainers as well. Ethically I feel it is the best option.

The other issue, however, is the notion of a free consultation. The purpose of the consultation is for the potential client and me to meet and to see if we will be able to work well together (it’s essentially a two-way interview), provide some basic legal advice, and to discuss a business relationship. Time and again I am taking time explaining the diversion process to clients where the potential of a retainer is small. I do feel there is value in this consultation which I do not feel I can continue doing for free. I have been considering for a few months now beginning to charge for an initial consultation. I’ll explain my rationable, and the arguments for and against this, in a future post.