Lawyers and Their Clients: Who’s in Charge?

Lawyers who practice family law in Winnipeg are familiar with the Tuesday morning motions court, known as the “zoo” for reasons that will soon be obvious. For those unfamiliar with this docket court, the recent decision of Associate Chief Justice Rivoalen in Skinner v. Skinner is instructive:

[10] There is a lot going on as the Family Motions Coordinator, parties and their lawyers navigate their way through the typical Family Uncontested Motions melée, and not only because there are so many matters on the List. Moreover, the Court’s registry staff, clerks, sheriffs, stand-by master and judges are fully engaged….

[11] The courtroom in which the Family Motions Coordinator oversees the List is unfortunately often in a state of disorder, occasionally bordering on chaos. Lawyers and Court staff refer to it derisively as “the zoo”. There is reason for their ridicule. Many lawyers in the courtroom waiting to speak to their matters use their time to socialize. They chat away and catch up with their colleagues. Insufficient respect is shown to the Family Motions Coordinator, who is not vested with the authority to order costs or pronounce contempt orders. Decorum goes out the window. Not infrequently noise levels are so high that he or she has difficulty conducting the docket properly. To make matters worse, the courtroom is often overflowing with lawyers, their clients and a large contingent of self-represented parties. Finally, the high-conflict nature of many matters on the List contributes further to its degradation because lawyers and parties are not always at their best under these conditions.

[12] What flows from the foregoing is too often a serious lack of professionalism. Recently there were reports of locker-room behavior occurring in the courtroom while the List was being conducted. The scene overall has done little to protect the List from falling into disarray and disrepute. This reflects poorly on the lawyers who appear on the List and on the Family Division across the board.

Her views on the this docket court process provide a necessary context for Associate Chief Justice Rivoalen’s further comments to the lawyers involved in this case. (For further comment on the decision, see also Fixing the “zoo” – One judge’s perspective.)

In delivering her decision on costs, Rivoalen, ACJ, went on to remind counsel appearing of their professional obligations, noting that:

[22] For the List to serve its intended purpose, and the interests of those for whom it is put together each week, counsel must be mindful of the professional standards that they are expected to maintain. In this case there is evidence that the petitioner exerted considerable influence over her lawyers and provided inflexible instructions to them. That does not excuse a breach of professional responsibility.

[23] Clients can take unreasonable positions, but lawyers must serve as their own gatekeepers of professional conduct rather than blindly following instructions. Lawyers are not free to act on whatever instructions they might receive from their clients. On the contrary, lawyers are obliged by their rules of professional conduct to refrain from acting on certain instructions. Put another way, distinct restrictions or disabilities accompany the rights and privileges afforded to lawyers. One such restriction or disability precludes them from carrying out the instructions of over-zealous clients.

[24] It is the lawyer who has conduct of a litigation file – not the client. The lawyer must maintain a certain independence from the client and must not let the client override his professional judgment. The lawyer is required of course to take instructions from the client, and owes a duty to do his best for the client; but an important part of the lawyer’s job is to steer the client through the rocky territory of litigation. The lawyer is responsible for his word, both to the Court and to opposing counsel. He owes a duty to each. The lawyer must maintain his integrity and the honour of the profession at all times – even in the face of assertive clients and challenging courtroom environments. All of this is essential to his reputation and relationships with opposing counsel, which are of fundamental importance to the practice of law.

Did you catch that last bit? The lawyer’s duty to opposing counsel and to the court is somehow paramount to the duty to the client. Reputation and relationships with opposing counsel are elevated to the position of fundamental importance; meanwhile, clients are reduced to the role of sheep that must be guided through the rocky territory of litigation. I recall well first hearing this perspective taught in my first year of law school, under the topic of “control the client;” even then, it seemed unduly paternalistic to me.

Now, contrast Associate Chief Justice Rivoalen’s perspective with that of the litigant, as outlined in Dr. Julie MacFarlane’s recent post, 3 assumptions that are leading us astray – and impeding our commitment to system reform that could enhance access to justice. Dr. MacFarlane’s 3rd assumption is as follows:

Assumption 3: Lawyers need to direct and control the full extent of every case

The “lawyer-in-charge” model (that I wrote about in “The New Lawyer” in 2008) is by all accounts dead in the water for the general public – for both corporate and personal clients. It no longer works for a public culture that prefers self help, cost-saving approaches that place the consumer at the centre of the action – as a partner, not simply someone who writes the cheques and does what they are told.

Yet some members of the legal profession continue to cling to this model, declaring that they are protecting the public from their own ignorance. This may be a genuine concern – there are complex challenges in changing how we deliver legal services.

We need to recognize that this “explanation” appears to the public – as I believe it did to many who came to listen to our panel in Ottawa on Saturday – to be absurdly self-serving. Why, they ask (as well as the respondents in my study) can’t you offer services on an hourly basis? Answer: because it is better if you pay us a retainer and let us control the file. Why (ditto) can’t para-legals do family work? Answer: because the legal profession has decided they are not ready yet.

Really, we have to come up with more persuasive arguments than these. Times have changed, and no professional group can reassure the public with “just trust us” anymore.

The breadth of the gap between what clients expect and what lawyers believe they must provide is clearly illustrated by the opposing views expressed by Associate Chief Justice Rivoalen in outlining professional requirements and Dr. MacFarlane, in outlining the public expectation.

Lawyer-centric court processes, such as the Manitoba Court of Queen’s Bench family motions court docket, only serve to maintain that gap. In these sorts of procedures, the needs of self-represented litigants, who have for some time now represented the majority of family court litigants, are subjected to the need of the court to maintain a sense of decorum and professionalism and also to the needs of counsel focused on efficiently addressing a number of uncontested matters while meeting the expectations of their clients.

It is, I suggest, in processes such as the uncontested motions court, where issues of access to justice cross paths with a client revolution that is driving calls for change in the future of law. Clinging to the traditional “lawyer knows best” approach will not move us forward on either the path to increased access to justice or the future of the legal profession.

Dr. MacFarlane concludes her post with this admonition:

The public are the system users – and what is more the huge rise in SRLs means that many are now direct users, with no intermediaries. They have lots to tell us. We need to listen to their needs, explain our concerns clearly, and commit to change.

I couldn’t agree more.

Retweet information »

Comments

  1. Tuesday morning family chambers was the most interesting thing I ever did (as an articling student there was no better way to get time on your feet in court) and is one of the reasons I’m a solicitor today.

    At that time, a senior lawyer I worked with told me about her standard retainer letter for family clients – the gist of it was that she retained control over procedural matters and was instructed in advance to use her judgment. Consents to adjournments, scheduling matters, orders to produce, that sort of thing – which is 99% of the work in family docket court. So we never got into a situation where I was down at family chambers arguing against a reasonable request for an adjournment because of a client’s contrary instructions.

    I don’t see the problem with lawyers being gatekeepers of procedure.

  2. The idea that a lawyer should subordinate his or her good manners — for that what is being recommended — to the demands of the client is a recipe for making the processes of the law, whether in litigation or negotiation, unworkable and even more hostile and expensive than they are now. Moreover, the Rules of Professional Conduct make it crystal clear that a lawyer’s ethical breaches will not be excused just because a client might like the lawyer to do what the client wants. It is the duty of every lawyer to behave honourably and decently with respect to every person he or she engages with in the practice of law. The idea that the unethical, rude or difficult lawyer is serving his or her client best by so acting is dangerous, silly and, what’s most important, dead wrong.

  3. If a litigant wants to make every procedural decision unilaterally, and have all of her views presented in court with perfect fidelity, then why would she waste money on a lawyer?

    That litigant would proceed self-represented.

    A litigant who retains a lawyer to represent her in court presumably wants the lawyer to deploy special skill and knowledge to advance the client’s goals in a way that the client herself cannot.

    I think Rivolaen ACJ’s words simply ask the lawyer to do exactly that: act in a matter which adds value to the client’s cause, through effective and appropriate oral advocacy.

    I am sympathetic to MacFarlane et al’s argument that many clients now want, and should be able to keep, more control of their cases when working with legal professionals. However I think that view is entirely compatible with what Justice Rivolaen said in the judgment.

    Nor can I find anything in the judgment which suggests that the “lawyer’s duty to opposing counsel and to the court is somehow paramount to the duty to the client.” In fact, It is only by behaving respectfully to opposing counsel and the court that a lawyer can give effect to her duty to advance her client’s cause.

Leave a Reply

(Your email address will not be published or distributed)