Lawyers for parents in family law cases have important ethical duties, not only to their clients and the administration of justice, but also to ensure that the interests of their clients’ children are appropriately taken into account.
A family lawyer taking a child-focused approach also best serves the long-term interests of a parent who is the client, reconciling the apparent tension between the lawyer’s traditional role of being a “partisan” advocate and that of a “child-focused” advocate.
The duties of family lawyers towards children are indirect, and arise because their parent-clients themselves have a legal and moral duty to their children. Lawyers give effect to this duty by providing information, counsel and support to their parent-clients with the aim of helping their clients to be good parents.
Duties in regard to children must always be balanced against a family lawyer’s obligation to take instructions from their clients. More explicit recognition of the unique ethical issues related to the practice of family law should result in greater professional satisfaction for lawyers, and promote better long-term outcomes for parents and their children.
Professors Bala, Birnbaum and Hebert published an excellent paper on this topic, namely, “Ethical Duties of Lawyers for Parents Regarding Children of Clients Being a Child-Focused Family Lawyer” found in the Canadian Bar Review”, Volume 95, Number 3, 2017.
In adversarial proceedings that will likely affect the health, welfare or security of a child, they posit that a lawyer should advise the client to take into account the best interests of the child, if this can be done without prejudicing the legitimate interests of the client.
Although there are cases where lawyers for vulnerable parents must advocate for restrictions or suspension of contact with former partners, especially when there are concerns about violence or abuse, in most cases, lawyers for parents should work towards a non-adversarial resolution that promotes significant ongoing involvement by both parents in the lives of their children.
If family lawyers were to admit that ongoing parental conflict is harmful to children, then their duty ought to be to encourage compromise and settlement, as opposed to litigation.
In this thoughtful essay, these academics stress that clear ethical standards for family lawyers can also reinforce for clients and the public the notion that family lawyers have a unique and critical role in improving the health of the family unit and preserving parent-child relationships, during and after family breakdown.
They argue that, in criminal and civil cases, zealous advocacy may be required, but it is seldom appropriate in family law matters and is inconsistent with the interests of families.
They propose a Model Code requiring family lawyers to encourage settlement of cases as follows:
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. Settlement is especially important for cases where the clients have minor children, as parents who have separated or divorced will have a continuing relationship concerning their children, and an adversarial legal process will place greater strain on their relationship.
Family law disputes occur in an often emotional and embittered atmosphere, with one or both parents feeling a sense of fear, anger, betrayal, loss of trust, grief or humiliation. This naturally drives conflict and acrimony. However, the family lawyer knows that, unlike most other disputes, parents involved in family disputes will interact for years to come and need to communicate and co-operate if their children are to thrive. Good family lawyers recognize that rarely, if ever, is it in the interests of a child for their parents to be in conflict over them, and that amount of conflict can reduced if every lawyer, from the beginning, manages their client’s goals, needs and expectations appropriately.
A lawyer who fans the flames of litigation in an adversarial forum, pitting one parent against the other in the name of justice, is doing a dis-service to their clients, their children and society. Even if adversarial clients push their lawyers to adopt extreme positions and adversarial stances, skilled lawyers that resist this pressure with independent thought and self-reflection are the true heroes in family law.
Family law involves personal and intimate matters and the most vulnerable members of our society – children. The legal issues can lead clients and lawyers to feel passionately, particularly when lawyers have their own histories. Lawyers must recognize that they only have fully heard one side of the story. Hence, clients will not be well served if lawyers cannot maintain objectivity, recommend compromise and work together on solutions.
If lawyers are not civil to each other, how can we expect spouses involved in a family breakup to do so?
Reference: “Ethical Duties of Lawyers for Parents Regarding Children of Clients Being a Child-Focused Family Lawyer, Canadian Bar Review”, Volume 95, Number 3, 2017.
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