Last Tuesday, I was honoured to be presented with the Distinguished Service Award for service to the community from the Law Society of Alberta and the Canadian Bar Association Alberta. I took advantage of the more or less captive audience to discuss the need to improve the Code of Conduct to better reflect the practice realities of family law lawyers and the needs of their clients, and the needs of their clients’ children. As my remarks were received with more interest than I’d expected, I thought I would take this opportunity to describe in more detail the sort of changes I had in mind.
I have previously written on this subject in my 2016 Slaw article “The Need for a Code of Conduct for Family Law Disputes;” the present article will expand on those comments. Others have discussed the need for reform in the context of family law disputes as well, including: Deanne Sowter, in a paper I learned about yesterday morning titled “Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code,” to be published in the Windsor Yearbook of Access to Justice; and, Nick Bala, Trish Hebert and Rachel Birnbaum in a 2017 Canadian Bar Review paper, “Ethical Duties of Lawyers for Parents Regarding Children of Clients.” Both papers are thought provoking and well worth reading.
The problem with the current Code of Conduct – for the sake of consistency I will be referring to the Model Code of Professional Conduct released by the Federation of Law Societies of Canada in 2017 – is its emphasis on adversarial advocacy, and the effect such advocacy has on families.
Under Rule 5.1-1, Canadian lawyers are required to:
… represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.
There’s nothing wrong with this at all, in my view. However, the commentaries take this duty into the realm of what has been described as “zealous advocacy,” and that’s where the wheels begin to fall off the bus. The first three commentaries state, in part, as follows:
 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. …
 This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators and others who resolve disputes …
 The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged … to assist an adversary or advance matters harmful to the client’s case.
Although this model of advocacy is perfectly well suited to personal injury claims, claims in tort and contract, wrongful dismissals, shareholders’ grievances and the rest of the pantheon of civil disputes, it wreaks havoc and destruction when applied to family law disputes. Let me explain why.
Most civil disputes take place between arm’s-length parties, who may have no relationship with each other except that which gave rise to the dispute. They concern closed events whose beginning and end points occurred long before trial. They tend to involve concrete evidentiary questions susceptible to conclusive measurement, like the length of the skid marks, the condition of the road and the wear of the brakes in a car accident. They concern the determination of liability, and, where liability is found, the quantum of damages necessary to restore the plaintiff to the position she would have been in but for the bad act.
Family law disputes, on the other hand, concern family members whose relationship with one another will continue into the indefinite future. They concern events taking place over a lengthy span of time continuing to the end of trial. They involve ambiguous, indefinite questions about matters such as the quality of a child’s relationship with a parent, the impact of substance abuse, mental health disorders or cognitive impairments on a party’s parenting capacity, or whether a child will be better off living in a new town rather than the town in which the child grew up. They concern not restitution for past events, nor even “winning” and “losing” as the terms are traditionally understood, but the parenting, support and property arrangements that will best provide for the future functioning of families living apart.
In family law disputes, the obligation to “raise fearlessly every issue,” to “advance every argument” and to “ask every question, however distasteful” is a recipe for disaster. It leads counsel who have lost their objectivity to exhaustively canvass issues wholly unrelated to the family’s future wellbeing, including affairs, betrayals and infidelities, trivial instances of wholly historical neglect, and litanies of petty slights, offences and arguments. It extends the time required for trials, multiplies the number of interim applications, and increases the likelihood of appeals. It delays the resolution of the underlying legal issues, increases the probability that expensive expert evidence will be required, and exacerbates the costs incurred by all involved.
Worst of all, the vigilant performance of this duty causes clients to become further entrenched in conflict and resentment, protracts the children’s exposure to their parents’ enmity, and risks the enmeshment of members of the children’s extended families. It’s worth noting that the Code of Conduct mentions children only twice, once in the context of lawyers’ personal guarantees, and once in the context of Rule 5.1-1. Here’s the fourth commentary to that rule:
 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.
A lawyer should, not must, advise the client to consider, not accommodate, the interests of her children, and then only if such consideration will not prejudice the client’s legal position. Not only is this direction permissive rather than mandatory, the threshold it sets for the exercise of counsel’s discretion is ridiculously high. The facts of the matter, according to the research, are that: parental separation is distressing for all children; and, the two key predictors for children’s adjustment after separation are the quality of the child’s relationships with her parents and the intensity and duration of the conflict between her parents.
Although there may or may not be a causal relationship with this duty, the available data on family law cases show that although they are the minority of civil cases, they nonetheless occupy the greatest share of judge time and produce the greatest number of reasons for judgment. Data obtained by the federal government from Canada’s superior courts show that a disturbing number of family law cases are four or more years old; in 2015 more than half of divorce cases before the Alberta Court of Queen’s Bench had this distinction.
Having said all this, the family law bar is increasingly changing its approach to dispute resolution. When I was called to the bar, the assumption was that every file that walked through the door was going to be resolved by trial. Following the initial meeting, I would prepare the writ of summons and statement of claim, four or five formal demands for discovery, a motion for relief on short notice and supporting affidavit, and the client’s financial statement. This inch-thick pile of paper would be served on the opposing party without any attempt at discussion, in the hope that the shock of service would intimidate and stimulate concessions. After opposing counsel had been retained, correspondence was brusque and belligerent, and usually prepared for self-serving purposes; settlement discussions were reserved for the weeks or days leading to trial, and never engaged in to resolve interim applications. These days, however, not only do counsel actually talk to each other – on the telephone, and without the need to diarize each other’s every utterance in follow-up letters – they are often interested in achieving sensible settlements without the necessity of commencing a court action.
In fact, a 2017 study by the now-defunct Canadian Research Institute for Law and the Family, “An Evaluation of the Cost of Family Law Disputes,” surveyed the views of 166 family law lawyers in Alberta, British Columbia, Ontario and Nova Scotia on mediation, collaborative negotiation, arbitration and litigation, and found that although almost all respondents litigated to resolve family law disputes, litigation was the dispute resolution process they least preferred. Respondents said that every process other than litigation was faster, cheaper and more likely to produce results that are more durable and more likely to be in the interests of the client and the interests of the clients’ children. That’s a pretty stinging indictment of the adversarial process contemplated by Rule 5.1-1.
Not only does the Code of Conduct fail to serve the best interest of Canadian families, including their children, it has ceased to reflect how competent counsel actually practice family law. As long ago as 2005, the BC Justice Review Task Force, in its paper “A New Justice System for Families and Children,” recommended that the Law Society of British Columbia:
… recognize the changing roles and duties of family law lawyers and develop a Code of Practice for Family Lawyers to give guidance in the balancing of a lawyer’s partisan role with the potential harm it may cause to other family members, especially children.
Six years later, a working group of the Canadian Bar Association British Columbia, followed up on the invitation extended by the Task Force and created a set of advisory guidelines for lawyers practicing family law:
Lawyers involved in a family law dispute should strive to ensure it is conducted in the following manner:
1. Lawyers should conduct themselves in a manner that is constructive, respectful and seeks to minimize conflict and should encourage their clients to do likewise.
2. Lawyers should strive to remain objective at all times, and not to over-identify with their clients or be unduly influenced by the emotions of the moment.
3. Lawyers should avoid using inflammatory language in spoken or written communications, and should encourage their clients to do likewise.
4. Lawyers should caution their clients about the limited relevance of allegations or evidence of conduct.
5. Lawyers should avoid actions that have the sole or predominant purpose of hindering, delaying or bullying an opposing party, and should encourage their clients to do likewise.
6. Lawyers cannot participate in, and should caution their clients against, any actions that are dishonest, misleading or undertaken for an improper purpose.
7. Lawyers should keep their clients advised of, and encourage their clients to consider, at all stages of the dispute:
a. the risks and costs of any proposed actions or communications;
b. both short- and long-term consequences;
c. the consequences for any children involved; and,
d. the importance of court orders or agreements.
8. Lawyers should advise their clients that their clients are in a position of trust in relation to their children, and that:
a. it is important for the client to put the children’s interests before their own; and,
b. failing to do so may have a significant impact on both the children’s well-being and the client’s case.
9. Lawyers should advise their clients of and encourage them to consider, at all stages of the dispute, all available and suitable resources for resolving the dispute, in or out of court.
Sadly, the CBA working group failed to convince the Law Society of the need to establish a separate “code of practice” for family law lawyers, which instead relegated the working group’s guidelines to the warm and fuzzy dustbin of “aspirational standards.” It is not at all clear to me, however, that these guidelines are compatible with a plain-language reading of Rule 5.1-1 and its commentaries; adherence to such aspirational standards might well result in disciplinary action.
Something more is clearly required. Not only do family law lawyers need to be expressly relieved of the conflict and chaos a plain reading of Rule 5.1-1 requires, an affirmative obligation to sensible practice, perhaps along the lines of the working group’s guidelines, is also necessary.
Although the creation of (yet another) working group will be necessary, whose membership I suggest be drawn from the Federation of Law Societies of Canada, the CBA’s Family Law Section, the CBA’s Child & Youth Law Section and the academy, I do have some ideas about the sort of content that might be helpful in an alternative Rule 5.1 designed for family law lawyers…
- Counsel should regularly conduct an assessment to determine the mode of dispute resolution best suited to each case, bearing in mind the circumstances of the case, the interests and needs of the children, the interests and objectives of the client, the range of probable outcomes and the fact that the mode of dispute resolution best suited to the case may change as the case develops.
- Counsel should regularly conduct an assessment to determine whether the assistance of any third-party professionals would aid in the resolution of the dispute, including financial experts as well as counsellors, parenting experts and other mental health professionals.
- Counsel should provide their clients with information about any resources known to them which might help their clients better understand the law, dispute resolution processes, communication skills, the reduction of conflict and conflict management, children’s reactions to separation and the impact of conflict on children.
- Counsel should be able to have frank, off-the-record conversations with one another about their clients’ situations, the nature of the dispute, the merits of their clients’ positions and any obstacles to settlement. Such conversations should be privileged and counsel should be barred from disclosing the substance of such conversations with decision-makers.
- Counsel should be obliged to give equal priority to the interests and needs of the children and the interests and objectives of the client, and give weight to the future functioning of the family, when developing strategy and advocating on behalf of the client.
- Counsel should be obliged to critically assess their clients’ instructions in light of the circumstances of the case, the interests and needs of the children and the range of probable outcomes, and to discuss their assessment with their clients. Moreover, counsel should be able to refuse instructions that are doomed to fail, that would commence a useless process or that would, if followed, needlessly exacerbate conflict or negatively affect the wellbeing of any children.
- Counsel must not raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case, where doing so would needlessly exacerbate conflict, negatively affect the wellbeing of any children or impair the future functioning of the family.
- Counsel should recognize and promote the view that children are independent rights-bearers and promote the objects of article 12 of the UN Convention on the Rights of the Child in all family law dispute resolution process, including mediation and arbitration.
- Counsel should discuss options and opportunities for settlement with the client at each stage of the case. Where a settlement proposal is received, counsel must seriously discuss the merits of the proposal with the client and provide a substantive reply to each element of the proposal within a reasonable period of time.
I realize that these suggestions are incomplete, possibly impractical and likely incoherent. I welcome all comments and criticism.
Addendum: And here’s another idea, and possibly the most important.
- Counsel should cooperate with each other to: ensure reasonable demands for disclosure and production are satisfied within a reasonable period of time; address problems arising in the relationship between the clients and between each client and the children; identify areas of agreement in the facts and in the relief sought by each party; jointly retain and instruct experts; and, concede relief that cannot be reasonably defended.