The Codes of Conduct of Canada’s various law societies set the standards of conduct expected of members of the profession. They are enforced through the law societies’ enabling legislation, which uniformly empower the societies to punish breaches with sanctions ranging from reprimand to disbarment.
The Codes of Conduct require us to find a balance between our obligations as advocates and the general duty to uphold the rule of law and practice with honour and integrity. It seems to me, however, that bar admission courses, intending to simultaneously instill a healthy respect for practice standards and a dread fear of complaints, often emphasize the former at the expense of the latter. We are taught that we owe an undivided fealty to our clients, for whom we must advocate with a resolve tempered only by the duty to “advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and … discourage the client from commencing … useless legal proceedings,” as the Model Code drafted by the Federation of Law Societies of Canada puts it.
The Model Code describes our duty of “zealous advocacy,” as it is frequently characterized, at r. 5.1-1 thusly:
When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law…
The British Columbia Code of Professional Conduct says much the same at r. 2.1-3(e):
A lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law.
The commentaries to the Codes tend go a bit further. The Model Code, for example, explains that:
In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.
It it occurs to me that this vision of advocacy – the lawyer as champion, resolutely engaged in battle within the confines of an obscure chivalric code – is perhaps incompatible with the broader duties owed by counsel in the context of family law disputes. With the greatest of respect to my licensing bodies, the Codes of Conduct ill serve both our clients and their children.
The Codes of Conduct operate well in the lion’s share of non-family civil disputes, in which arm’s-length parties contest over an event occurring at some point in the past and the harm said to have resulted therefrom. Disputes such as these fit nicely into the win/lose approach demanded by an adversarial system and the zealous representation the Codes require. There are, however, a number of critical differences between non-family disputes and family disputes:
- family law disputes concern adults engaged in the most non-arm’s-length relationship imaginable, whose personal relationship is ongoing and will continue after trial;
- the dispute affects people other than the parties, as the parties’ children, extended family members and new partners may all be impacted by the conduct of the dispute and its outcome;
- the issues involved are often intangible and insusceptible to quantification — rather than dealing with the cost of a collapsed deal or the speed and state of repair of a car involved in an accident, family law disputes often concern parenting capacity, employability, personality disorders and wellbeing;
- the conclusion of the trial, and the expiry of the appeal period, does not signal the end of litigation, as family law disputes may continue into the indefinite future where support and children are at issue;
- the evidence at trial does not concern a closed event occurring in the past, but an ongoing series of events which continues to the present; and,
- the object of the litigation is not an award of damages to address the consequences of the past event but securing the best possible future for the separated family, with respect to both finances and the care of any children.
In other words, family law disputes concern the indiscernible future, not the known past, and have repercussions affecting the day to day wellbeing of children. As a result, and except for specific issues such as the imputation of income or the payment of arrears, the resolution of family law disputes rarely involves “winning” and “losing” and such should not be the goal of counsel.
Although some lawyers take a purely instructions-based approach to family law disputes, in my view the perspective of counsel in such disputes must be broader. Without a doubt we owe a duty of fealty to our clients, but that duty must be mediated by:
- our knowledge of the range of probable outcomes, contrasted with clients’ wish lists;
- the need to minimize conflict, for the benefit of both our clients and, more importantly, their children;
- the need to give both parties the greatest chance, where appropriate, of effectively coparenting their children into the indefinite future; and,
- the paramountcy of the children’s best interests.
In family law disputes, compassionate counsel attentive to these issues will not “raise every issue,” “advance every argument” and “ask every question” to pursue the client’s ends, nor will they attempt to achieve for their client “every remedy authorized by law.” Such an approach is a recipe for inflamed conflict at the least and risks exacerbating the effects of the dispute on the children at the worst.
Now, to be fair, the fourth commentary to r. 5.1-1 of the Model Code does mention the duty of lawyers with respect to non-party children, the only reference in the Code to children other than in the context of lawyers’ guarantees of loans at r. 3.4-35(a). The commentary states that:
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, if this can be done without prejudicing the legitimate interests of the client.
I appreciate the sentiment of this commentary, to be sure, but I note that: the admonition is optional, not mandatory; it requires that the client only be “advised;” and, the “legitimate interests” of the client come before the interests of the client’s children.
The Model Code, versions of which have been adopted by the law societies of most provinces and territories, is inadequate to the modern practice of family law and the holistic, family- and child-centred approach it demands. It mires counsel in an antiquated, conflict-based attitude poorly suited to the needs of separating families. We need, I suggest, a new code for family law matters, or at least amendments to the old, which:
- directs counsel to critically assess clients’ instructions, and discuss those instructions with the client, in light of the circumstances of the case and the range of probable outcomes;
- directs counsel to develop strategy taking into account the impact that the strategy will likely have on any children, the degree of conflict the strategy will likely entail, the complexity of the case and the need to promote future family functioning;
- directs counsel to give equal priority to the interests and needs of the children and the interests and objectives of the client when developing strategy and advocating on behalf of the client;
- allows counsel to refuse instructions which, if followed, are likely to unreasonably or unnecessarily inflame conflict, negatively affect the health, welfare or security of the children or commence a useless process;
- directs counsel to consider settlement opportunities, and discuss those opportunities with the client, at each stage of a family law proceeding; and,
- directs counsel to promote the rights of children under art. 12 of the UN Convention on the Rights of the Child in any family law process, judicial or otherwise, affecting their interests.
I have doubtless overlooked a number of important considerations. If so, please contribute to the discussion by submitting a comment to this post.
John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.