Lawyers Need to Be Able to Identify When Clients Have Experienced Abuse

On Friday (January 25th), The Globe and Mail reported on a new risk-assessment tool being developed by Deepa Mattoo, the legal director of the Barbra Schlifer Commemorative Clinic. This much-needed assessment tool joins others that have been recommended or are in development, primarily related to family court matters. While it is important that practising lawyers and judges, among others, learn to recognize the signs of abuse, it is also crucial that law students are prepared to work with clients who appear to have experienced abuse, as well as possible abusers. In 2012, the Law Commission of Ontario released a report, Violence against Women Curriculum Modules Initiative, funded by the Ontario Women’s Directorate, with the objective of developing curricula tools for law students that can be used in all areas of law.

The tool that Deepa Mattoo is developing will take the form of standardized questions to assist lawyers and mediators, for example, in identifying women who have experienced abuse. As described in the Globe story, those using the questionnaires will be able to “assess abused women’s situations, provide the rights resources and help guide them and their children to safety”. The focus of this tool is the family courts, which, surprisingly, do not have a systematic way of identifying women who have suffered abuse, although it may be developed to apply more broadly. The federal Department of Justice is also preparing another screening tool directed at family law practitioners.

The uneven levels of knowledge by family law lawyers in this area mean a serious gap in the provision of effective client services. Simply asking whether a client has experienced domestic abuse is not enough: lawyers also need to be able to identify subtle signs in body language, for example. But domestic abuse doesn’t arise only in family law cases: it can have an impact in almost all areas of law. The LCO’s advisory group of academics, a law student, clinic workers, defence counsel and a prosecutor, a member of the Court of Appeal and the National Judicial Institute and others assisted in determining content of and options for teaching modules about violence against women.

Central to the development of the modules is the reality that lawyers in almost all fields, as well as judges, must be prepared to address issues of domestic violence, and that the ability to do so is relevant to the competence exhibited by members of the legal profession. The LCO’s report followed a line of recommendations to include issues of domestic violence in the law school curriculum, including detailed materials developed in the most obvious legal areas in 1992 (also funded by the OWD) and from a variety of sources. However, to the extent that domestic violence (or “intimate partner violence”) has been taught in law schools, it has tended to be only in certain courses and by particular professors. The LCO report recommended that using a variety of optional formats, all students learn the basics about intimate partner violence, sufficient to be able to identify when their clients have experienced it.

The LCO report identified competences in the following areas: knowledge, best practices, skills, professional role(s) and ethics (listed on pp.14-15). Among knowledge competencies, it named “an understanding of the differing ways in which violence against women is manifest in different communities” and “an understanding of the impact of violence on a victim’s ability to interact with legals systems”. Best practices includes establishing a safety plan for the client and the lawyer, as well as integrating knowledge of abuse into the approach to the file. Skills relate primarily to be able to referring the client appropriately and knowing how to conduct an interview appropriately, as well as managing the impact of this work on themselves. The report treats appropriate addressing of domestic abuse as an ethical issue and argues that the obligation to be prepared to address it be included in ethics courses

The report proposed different ways in which these issues could be included in the curriculum by law schools, depending on their preference: embedding appropriate references in every course, including specific stand-alone modules or courses, to ensure all students would be exposed to the issues in a basic way, as well as offering a specialized course or courses for those who are interested in more in-depth study. The goal, however structured, is to make sure all students learn the basics relevant to working with clients who have experienced domestic abuse, and abusers, as the matter arises in whatever area of law they practice. Clearly, students who plan to practice family, criminal, immigration and some aspects of civil law are more likely to have clients who have suffered abuse, even though that may not be why they retained the lawyer. However, students need to appreciate that other clients may have experienced abuse in ways that may affect how they interact with the lawyer or tell the lawyer their story.

Finally, the report discussed pedagogical techniques, provided examples of course content for family and criminal law, as well as ethics, professionalism and practice considerations and relayed student comments during focus groups at the law schools. The student comments illustrated how across the law schools, even though the opportunity to address the issue differed among law schools, there were deficiencies in all areas: content, teaching approaches, professors’ knowledge and how students who experienced abuse were treated, among other issues.

The LCO report was directed at law schools; however, it is also important that paralegals learn about these issues, as well as judges. The federal government provided funding mostly in relation to sexual assault, as reported in the Sudbury Star:

to train Crown attorneys, police officers, victim services, nurses, probation and parole officers. This includes content on the neurobiology of trauma in relation to credibility assessments, the unique experiences of indigenous women who are survivors of sexual violence, consent and capacity to consent, victims with intellectual disabilities, the role of sexual assault nurse examiners and experts from the Centre of Forensic Science.

It is crucial that judges understand the impact of domestic violence, why lawyers might raise certain arguments or defences that relate to their clients’ experience of domestic abuse. (A report in The Record.com talks about the deaths in B.C. of two girls at the hands of their father after a judge granted the father custody, despite allegations by the mother that he had abused her.) It is not enough that judges in speciality domestic violence courts are especially trained, as occurs with Ontario’s Domestic Violence Court Program, for example (see Ontario’s Integrated Domestic Violence Cour).

One area not addressed specifically by the LCO report (or at least some other earlier recommendations for legal education) is the potential for abuse that can occur through “smart” home devices, as explained in, for example, Digital Trends. We now have to add to physical, emotional, financial and other forms of abuse, technological or cyber abuse. This is an example of how legal education (and training of lawyers already practising) has to remain current: the use of smart devices to stalk and terrify a domestic partner requires lawyers to appreciate how these devices work, in part to identify when a client is abused and in order to ensure safe communications with the client.

Despite various efforts, we have not been successful in reducing domestic violence significantly, never mind eliminating it. However, even if we haven’t been successful in addressing root causes and manifestations, we can try to ensure that lawyers and future lawyers, as well as other legal professionals, appreciate how the issues can affect their clients regardless of the area of law, and know how to direct clients to help, as well as understand how to incorporate what they have learned about the abuse into their treatment of the client’s legal problems. Deepa Mattoo hopes to expand her efforts to apply more broadly; this would be a good thing. But efforts to deal with identifying clients who have experienced abuse and responding to that need to begin in law school (and in training paralegals); it needs to be given the same importance as other aspects of law students learn in mandatory courses and modules.

Comments

  1. Readers might be interested to know that the Department of Justice recently published a research report, including a template family violence screening tool, prepared by Luke’s Place Support and Resource Centre, which can be found at https://www.justice.gc.ca/eng/rp-pr/jr/can-peut/index.html.

    The report examines screening tools used in a number of sectors, including health care and mediation, in several countries and concludes that when the person using the tool is properly trained and has a good tool, accurate disclosures of family violence, including urgent safety issues, increase.

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