9 50 Nick Bala and Rachel Birnbaum (Day 2) Ethical Duties ...

Ethical Duties of Parents' Lawyers to Children of Clients:

Being a ChildFocused Family Lawyer

Nicholas Bala

Law, Queen's University

Rachel Birnbaum

Social Work, King's University College, Western University

With thanks to Patricia Hebert, Gordon Zwaenepoel, Edmonton AB

Family Law Summit: Law Society of Upper Canada Toronto, March 7, 2017

Thesis

? Family law has unique nature that requires different ethical approach from traditional approach of "resolute advocate"

? As counsel for a parent in family case, the lawyer has duties not only to the client and the administration of justice, but also to the children of the client

? Although sometimes tension between interests of parent and child, promoting best interests of child serves long term interests of parent

? Many family lawyers are intuitively aware of this, but not well recognized in Ontario

? Better articulation of ethics of family lawyers will help lawyers,

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clients, children and the administration of justice

Family lawyer's role: firefighter or arsonist?

? Role of Family Lawyers

? profound effect on the lives of their clients and their children, for better or worse

? help parents have a child focus and settlement orientation, but also need to know when court intervention and protection are necessary

? Changing the client ? "helping them to be good parents" ? Not all clients want to or can change

? Value added ? most clients need and want more than just

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"legal services"

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Role of family lawyer - challenges

? The higher the conflict, the worse for the children and the harder for the lawyer!

? High conflict cases parents may reject best advice and fire good lawyers -> then look for lawyer who will "do what say" or become SRL

? Personality disordered clients more likely to have personality disordered lawyers

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What makes family law different

? Prospective ? going through one of life's most stressful events ? most clients can and will change ? Lawyer can affect client behaviour and outcome

? Children (not parties) directly affected by outcome of negotiations, mediation or litigation

? Parties will have a continuing relationship ? including communication during process ? avoid "life long litigation" ? need for flexibility as child grows older and circumstances change

Duties of family lawyers

? LSUC Rules of Professional Conduct

? 3.2-4 Encouraging Compromise or Settlement

"A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing or continuing useless legal proceedings."

? Commentary to 5-1.1 [4] ("lawyer as advocate")

"In adversarial proceedings that will likely affect the health, welfare, or security of a child, a lawyer should advise the client to take into account the best interests of the child, where this can be done without prejudicing the legitimate interests of the client."

? Divorce Act s. 9(2) requires lawyers to "discuss" with clients seeking

to terminate their marriages "the advisability of negotiating"

resolution of issues and to inform clients of opportunities for

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mediation.

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Initial Interview and retainer

? Discuss role at initial interviews, including lawyer's duties and responsibilities regarding children

? Some clients will want a narrow focus, but many will appreciate a broader approach to their situation ? leavor and left likely in different positions ? both need help "moving on" and appreciating position of the other parent ? Clients need to be aware that if they have children, their relationship to the other parent will never end

? Consider including "best interests of child" clause in retainer

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Information on effects of separation & communication with children

? Parents often not fully aware of effects of separation on their children

? Refer to websites and books, and have printed material available (see paper for some specifics)

? Consider effects on children of too rapid introduction of new partners

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Referrals - interdisciplinarity

? Family separation involves legal, emotional, social and financial issues, also quite possibly housing, retraining etc.

? Family lawyers need knowledge about financial planning, child development and emotional trauma of separation,

? Lawyers need to be aware of limits of their knowledge, skill and role, and make appropriate referrals

? Warn against unilateral decisions to send a child to a therapist

? Know professional and social resources in your community

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Advising Clients on Maintaining a Child Focus

? Consider effects of their conduct on their child and the other parent (which will also affect the child) ? e.g be slow to bring in new partners to kids

? Modeling respectful communication to other parent ? Emphasize that judge will consider child focus and

inter-parental communication ? Emphasize that relationship will be on-going and

parenting arrangements will need to be modified

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Non-adversarial dispute resolution and child focus (DA s. 9)

? Settlement is usually best for all cases, but especially family cases

? Unlike most types of cases, relationship will endure making emotional costs of litigation especially high for clients and their children

? Not always appropriate to settle if

? serious domestic violence or abuse issues,

? other side is unreasonable

? other side has failed to properly disclose

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Dealing with Aggressive Lawyers & Self-Represented Litigants

? Challenging to deal with overly aggressive lawyer or SRL

? Emphasize to client costs of "payback," especially for the child

? "When they go low, we go high."

? If case goes to trial, judge will take account of conduct of the parents

? Ultimately child is almost certain to appreciate sacrifice of more child-focused parent

? Also role for counsel to point out rudeness and

unreasonableness of other side, and be prepared to take

protective action in the courts, especially if domestic

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violence, substance abuse, mental health concerns etc.

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Withdrawal

? Permissive right to withdraw if parent is not acting in interests of child ? With some clients threat of withdrawal on this basis may have an effect ? The most entrenched clients are likely to have fired child-focused lawyer

before this point

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Hearing the Views of Children

? Parents need to be told that they likely do not have complete understanding of their children's views

? Children tend to tell their parents what they think they want to hear

? Children often have better outcomes if their views are considered

? Most children do not want to "choose" between parents but have views about living arrangements, extracurricular activities

? Receiving reliable information about views of child will

often result in settlement

? Parents need to develop on-going strategies to hear from

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child as circumstances change

Child's views in the family justice process

? Hearsay ? child's statements to another

o Reliability concerns, especially if related by a parent

? Video, letters or affidavits of child

o Reliability?

? Social worker or psychologist undertaking court-ordered assessment or

? More focused "views of child report" ? Lawyer for child tells court about child's views ? Child meeting with judge

? Including at conferences ? Child testifies in open court ? Possible of multiple methods if case continues

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