Accepting a new client is a major decision. We lawyers owe a host of duties to a client. In a legal proceeding, a lawyer cannot simply terminate their representation. They require a signed Notice of Change in Representation or court order to end the retainer. Even outside of court matters, a lawyer cannot abandon a client. Given the nature of a lawyer’s obligation to a client, as defined by the Law Society of Ontario’s Rules of Professional Conduct, lawyers must be vigilant about who they accept as a client.
Identifying “red flags” before accepting a new client in a divorce case, especially concerning incapacity, duress and undue influence, is critical for ensuring that the lawyer is representing a person who is fully capable of making informed decisions and is not being manipulated or coerced.
Incapacity refers to a client’s inability to understand the nature or consequences of their decisions. To assess this, lawyers should be alert to cognitive impairments. If concerns arise, ask about the client’s mental health history. Be alert to signs of dementia, cognitive decline or neurological disorders that might affect their ability to understand the legal process. If a client has trouble following conversations, appears disoriented, or is unable to recall basic facts about their case, this could be a red flag. Consider asking the client to allow you to speak to their family or other professionals. In rare cases, consider asking for a medical assessment of the client’s mental health.
Duress involves a client being forced or coerced into making decisions against their will, typically under threat or pressure. Be alert to indicators. If the client is pushing to finalize the divorce settlement in an unusually short time frame, they may be under duress, especially if they seem to be acting hastily or without fully considering the consequences. A client who appears to be contradicting themselves, seems unusually passive, or has difficulty explaining their reasoning could be under pressure from their spouse or another party. If the client appears isolated, has no family or friends involved in the decision-making process, or is discouraged from seeking external advice, this may be a sign of duress. If the client suddenly seems fearful or distrustful of others, especially the opposing spouse, there may be coercion or intimidation at play.
Undue influence is when a party manipulates or persuades someone to make decisions they would not otherwise make, often exploiting a power imbalance. Be alert to red flags. If the client seems overly influenced by a spouse, family member, or another individual to make specific decisions (especially regarding parenting or financial settlements), this is a concern. The client might frequently refer to another person (usually the spouse) for decisions or show signs that they are deferring to the spouse’s wishes, even when it might not align with the client’s interests. Emotional distress, fear of the spouse, or physical signs of stress such as anxiety or panic could indicate undue influence, particularly if the client seems to be subordinating their own needs or desires to please someone else. If the client is unusually passive or reluctant to question settlement proposals or terms that seem unfair, it might suggest that they are being influenced by someone else.
Beyond incapacity, duress and undue influence, if a client appears unsure of their goals, has trouble articulating why they want a divorce, or seems undecided about the process, it could indicate external pressures or confusion. If a client relies entirely on their spouse or family member for legal advice or to make decisions on their behalf, this could indicate undue influence or incapacity. If the client seems unaware of their financial situation, or if financial decisions appear to be manipulated by another party, there could be underlying issues of duress or undue influence.
Here are some practical steps for divorce lawyers:
1. Conduct a thorough initial consultation in person: Take time during the initial meeting to assess the client’s mental and emotional state. Ask open-ended questions and observe their body language and emotional responses.
2. Use screening tools and questionnaires: Use standardized questionnaires to assess mental health, decision-making capacity and any history of abuse or manipulation.
3. Check for History of Coercion or Abuse: Investigate the client’s history, including any past instances of control, manipulation or abuse. If applicable, refer them to a counselor or support service for further evaluation.
4. Consult with experts: If you suspect incapacity, duress or undue influence, consider seeking input from mental health professionals or forensic experts to assess the client’s capacity to make informed decisions and autonomy.
5. Document observations: Make detailed notes of any concerning behaviours, statements or inconsistencies during your meetings for future reference.
By being vigilant about these red flags and taking appropriate steps, you can ensure that you are representing clients who are both capable of making informed decisions and free from undue pressure. This not only protects your client’s best interests, but also helps protect you.
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