Looking at Legal Ethics Through the Lens of Family Violence

The words “family violence”, “domestic violence”, “intimate partner violence” and “coercive control” do not appear anywhere in the Federation of Law Societies of Canada Model Code of Professional Conduct. The Code does not typically have special rules for special areas of practice, but family violence is not strictly a family law matter. Family violence can be an issue in immigration and refugee law, employment law, corporate law, criminal law, landlord-tenant law, and real estate law, to name a few.[1] When family violence is overlooked, the absence of recognition can perpetuate harm through the justice system. Family violence is a people issue and anywhere there are people they may be experiencing family violence. Legal ethics crosses all areas of legal practice, dealing with people, so it follows that legal ethics issues also intersect with family violence. In this post, I suggest that we ought to think about family violence as a legal ethics issue, and as such, we ought to think about the lawyer’s role and her professional obligations through the lens of family violence.

Since the pandemic began in 2019, the messaging from governments and health care providers around the world has been to stay home, because home is the safest place to be when the threat is a deadly virus. However, a 2018 UNODC study has found that, globally, “home is the most dangerous place for women”, because for many women, their spouse physically, psychologically, emotionally and financially abuses them. #CallItFemicide found that, in Canada, a woman or girl is killed by violence every 2.5 days, 53% of those are killed by male partners, and another 13% are killed by a male family member. UN Women has called the increase in violence against women since the pandemic began the “shadow pandemic”. According to Statistics Canada, most police-reported intimate partner violence occurs at home, and calls to the police for “domestic disturbances” increased by 12% during the first four months of the pandemic. Another recent survey found that gender-based violence has become more “severe” and more “frequent” since the pandemic began.[2] These statistics focus on physical abuse and death, but not all family violence leaves bruises. Moreover, although physical abuse is criminalized, only 19% of victims who are physically assaulted report the abuse. Complex emotional reasons including shame and fear are found to inhibit the majority of victims from reporting. There are no Canadian statistics about the frequency of coercive control – a type of family violence whereby “male abusive partners primarily interweave repeated physical and sexual violence with intimidation, sexual degradation, isolation and control.”^[3] And no statistics show how many of those who are physically assaulted are also victims of coercive control. Coercive control is not criminalized in Canada,[4] despite the well documented understanding about the serious psychological and liberty-based harms caused.[5] Since coercive control is not a criminal offence, victims do not report the abuse either, or if they do, we do not have statistics that reflect it. (In contrast, coercive control is criminalized in the UK. For the year ending March 2020, there were 24,856 police-recorded instances of coercive control, an increase from 16,679 the previous year.) Family violence is a serious and growing “shadow pandemic” in Canada, and so there is an increasing likelihood that lawyers will be representing clients who are experiencing family violence.

The Lawyer’s Role

A lawyer’s professional obligations are to the administration of justice, the public interest, and to her client. Her role within the justice system is, in part, to make the legal system work – to provide access to that system for the client she represents. The adage “do no harm”, is not strictly within the rubric of a lawyer’s professional obligations. If pursuing a client’s lawful interests results in harming a third party, the principle of non-accountability insulates the lawyer and deflects accountability to the client. It is a theoretical model that has problematic implications in the context of family violence. For example, we know that children exposed to family violence suffer from “emotional and behavioural problems throughout their lives.”[6] We know that there is an increased risk of harm at the time of separation and divorce,[7] and that an adversarial parenting dispute can extend that pattern of abuse and therefore prolong the period of risk. We look to the law to permit or enable permissible conduct and to empower the system the lawyer works within. Yet, at the same time, we know the legal system does an inconsistent job of responding effectively to family violence.[8] The legal system’s inconsistent response to family violence, and the way we think about lawyers’ ethics, is intimately connected to the profession’s inability to respond effectively to family violence.

A lawyer cannot participate in an illegal or fraudulent activity. Not every type of family violence is criminalized, which means the law that does exist needs to work harder to protect the vulnerable. For example, if an abuser’s lawyer is unaware of the abuse, and untrained in family violence, she may not know that action the abuser wants to take is done with a view to extend a pattern of abuse. For example, these actions could include restructuring a family business to diminish a victim’s ability to stay informed, or commencing litigation to extend the relationship and require communication when a survivor is trying to leave the relationship. The lawyer may not know that the justice system is being used for an improper purpose – that she has become a dupe or tool used to perpetuate family violence. In these cases, the idea that the justice system cannot be used for an improper purpose provides weak protection to those who are vulnerable.

The law currently does an insufficient job of protecting the vulnerable, and often, in my view, it is not clear protection is even a goal (although it should be). In these contexts, the law needs to work harder to ensure that checks and balances protect the vulnerable. One of those safeguards can be the lawyer herself, and a better appreciation of the way family violence occurs may help legal ethics be more responsive. Consider, for example, advocacy and civility. Both of these aspects of a lawyer’s professional obligations have developed in a way that does not seem to consider the possible implications where there is family violence.

Advocacy

A lawyer’s role is to pursue her client’s interests within the bounds of legality. Advocacy is often framed as partisan, aggressive, single-minded and focused on the client’s lawful interests alone. The Model Code provides under Rule 5.1-1[1] that a 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.” But where there is family violence, and where that conduct is not prohibited by the law, ideas about how aggressive a lawyer should be suddenly has horrific implications. Those fearless arguments and distasteful suggestions concern the most intimate details of a couple’s private life, and they can have consequences for a survivor of family violence who may experience the justice system as a form of “secondary victimization”.[9] Secondary victimization may occur when the justice system fails to protect survivors, embroiling them further in the adversarial process, which disempowers them further and in doing so revictimizes them.

Janet Mosher has shown that an abuser, particularly a coercive controller, may not use the legal system for a legitimate purpose, but rather “to maintain control, to punish, and to harm his partner.”[10] She found that the legal system provides an array of tools for an abuser to achieve this goal, including cross-examining his former spouse, bringing repeated motions, withholding assets, prolonging parenting issues and generally dragging out legal proceedings.[11] These tactics are not necessarily confined to family law.

To be clear, there are some safeguards that would ideally work. A lawyer cannot pursue a claim “motivated by malice” (Rule 5.1-2(a)). Nor can she “assist or permit” the client to do something “dishonourable” (Rule 5.1-2(b)). She cannot commence or continue a “useless legal proceeding”, and she must not abuse or misuse the legal system (Rules 3.2-4 and 5.1-2(a)). But if a lawyer is not trained in family violence, and does not screen for it, she is unlikely to know when a lawful claim is truly motivated by her client’s more pressing ambition of maintaining control over his former spouse (also triggering the competency rule (Rule 3.1-2)).

Moreover, in family law, where there is family violence, we know that current safeguards are not enough (although courts in British Columbia have found “litigation harassment” to be a form of family violence under the BC Family Law Act, making the abuse relevant to parenting determinations).[12] We also know that judges still make “problematic assumptions” about family violence in the parenting context, leading to children being unsafely placed in the unsupervised care of an abuser.[13] And we know that abusers will use unfounded claims of alienation as a defence against allegations of family violence (or as an extension of their abuse), and so some counsel advise against introducing evidence of the abuse or risk the judge removing children from the survivor’s care.[14] In other words, we know the adversarial system does not have sufficient safeguards nor do the players involved have sufficient education to make up for those inadequacies.

In sum, litigation harassment and secondary victimization occur, and the Model Code currently does not speak to that possibility, nor do we require that lawyers be trained in family violence to try to prevent abusers from retaining counsel for such an improper purpose. At the very least, if we look through a family violence lens at what advocacy is and what it requires, then it becomes clear that the law does not work hard enough to protect the vulnerable.

Civility

“[T]rials are not – nor are they meant to be – tea parties.”[15] The third paragraph of Groia v Law Society of Upper Canada, 2018 SCC 27 gives me a chill each time I read it, that is, when I read it through the lens of family violence – including physical or sexual assault. While the Groia decision was situated in the context of defence against allegations of securities fraud and needs to be distinguished on the basis of that criminal / regulatory context, that’s not necessarily how the case, or discussions about it, are framed.

The Model Code does not have a civility rule, but the Code does require that lawyers “be courteous” and “act in good faith” with everyone they deal with (Rules 5.1-5 and 7.2-1). Groia is the defining Supreme Court of Canada decision we have for civility, and it highlighted the importance of civility for the administration of justice and trial fairness; that incivility can “prejudice” or be “distracting” from the client’s cause, make participation in the justice system “stressful”, and “erode public confidence in the administration of justice”.[16] While all this is true and important, I wonder how these ideas and words shift when we consider them in the context of family violence. The decision situates civility in the context of advocacy in a way that does not seem to discourage the ferocity that can be dangerous in the context of family violence (albeit recognizing that the facts and context could not lead to those considerations). However, where the “stronger” party is not the state but an abusive spouse, thinking of civility in this way feels dangerous. Civility is balanced with a lawyer’s competing professional obligations, but in my view, those considerations ought to include family violence. Again, Groia is distinguishable given the context of securities regulation, but I suggest that the broader conversation about civility is not over because it seems to have overlooked the dynamics that may exist when two parties are unequally matched, when participation in the justice system is not just stressful but amounts to secondary victimization, and where the possible consequences of that inequality includes physical or psychological harm and death.

In the family law context, in Alsawwah v Afifi, 2020 ONSC 2883, a case involving intimate partner violence, Justice Kurz observed that “litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. … Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.”[17] Unfortunately, lawyers feel “dutybound to fearlessly advocate” because they are, in fact, dutybound – albeit proportionally. But Kurz J went on to itemize eleven tips for family lawyers to lower the “rhetorical excess” which he said is the “enemy of good advocacy”.[18] Do we need to provide formal guidance for civil professional conduct where there is family violence?

What Can We Do?

I’ve suggested elsewhere that the Model Code ought to be amended to require that a lawyer be on guard against becoming a tool of abuse, and prohibit a lawyer from knowingly permitting a client from using the justice system to continue a pattern of coercive control. In 2019, the New Brunswick Domestic Violence Death Review Committee recommended that every member of the Law Society of New Brunswick should be required to take a family violence course. In 2012, the Law Commission of Ontario made recommendations for incorporating teaching about violence against women in law school curriculums, including legal ethics courses. The question is, what else can we do to respond to the problem, particularly when we stop framing family violence as a family law problem and think of legal ethics through the lens of family violence.

If the Model Code were to be more broadly responsive to family violence, how might that be achieved?

• Should recognition that family violence impacts all areas of practice be included in the Preface?
• To determine whether a client is motivated by malice or wants to do something dishonourable but lawful, does it require that all lawyers screen all of their clients for family violence? If so, should Rule 3.1-2 (Competence) reflect that?
• Should Rule 3.2-5 (Threatening Criminal or Regulatory Proceedings) prohibit a lawyer from threatening, or advising their client to threaten, to unnecessarily involve the police or child welfare authorities?
• Should Rule 3.7 (Withdrawal from Representation) empower a lawyer to refuse to represent a client whom she suspects, but does not know for certain, wants to access the justice system to extend a pattern of coercion and control over his former spouse? If so, does it matter that an abusive party can achieve the same goal through self-representation?
• Should the Model Code’s conception of fearless advocacy (Rule 5.1) be tempered where there is family violence? If so, for both the survivor’s and the abuser’s lawyers?
• Should Rule 5.1-1[4] (Advocacy – Advising a client to consider the best interests of their child) include commentary acknowledging the harmful impact exposure to family violence can have on a child (of any age)?

These are not easy questions. Several of these questions are provoked by an idea that where there is family violence, unnecessary aggression by the survivor’s counsel may provoke the abuser thereby risking the survivor’s safety. But it’s also true that any type of adversarialness, aggressive or not, may also provoke him – there’s no easy way to define an objective line. These questions are also motivated by an idea that unnecessary aggression by the abuser’s counsel may involve using the justice system to extend a pattern of abuse over the survivor, thereby causing her (and their children) psychological, financial and emotional harm. In short, these ideas are fueled by the belief that we want to protect the vulnerable.

However, there are obvious problems here when we consider that the justice system and the lawyer’s role within it, is to ensure both parties have the opportunity to be heard and meet the case against them. Meaning, a lawyer cannot provide a gatekeeping function that prohibits autonomous access to that system on the basis of a hunch. Living in a society governed by the rule of law means it is the law, not the individual lawyer, which provides what we have agreed is morally acceptable. In short, the lawyer’s role does not include advancing a subjective view of what is good (even when the good includes protection of the vulnerable), those ideas need to be reflected within the law itself and the rules governing the lawyer’s conduct.

Perhaps the answer to all of these questions lies in professional discretion and experience, but that leaves an uncomfortable amount decision-making to lawyers (and judges) who are not trained in family violence. Where both the abuser and victim are skilled at hiding the abuse (albeit for different reasons), it seems inconceivable that we ask untrained lawyers to identify the abuse and make professional decisions in the absence of guidance.

Conclusion

Family violence is a legal ethics issue in the same way that access to justice is. The Department of Justice has estimated that spousal violence alone costs Canadians $7.4 billion annually, with the justice system bearing $545.2 million of that amount each year. Family violence is an enormous problem and one that has an impact on the whole justice system, the lawyer’s role within that system, and the ability for parties to access the system in a way that is safe and responsive. Family violence crosses all areas of practice and crosses all socio-economic demographics. Where there is family violence, the justice system often fails the families involved – the survivors, the abusers, and their children. Because the problem is unmet by the legal system we have, part of our conversation has to be the role of the lawyers who are tasked with providing competent access to that ill-equipped system. I’ve argued elsewhere that the competency rule ought to be clear that competent family law practice requires lawyers to be trained in and screen for family violence. In this post, I have tried to highlight the way discussions about civility and advocacy ought to shift when there is family violence – in all areas of practice. The law societies have an obligation to regulate the profession in the public interest, and family violence is a crisis that often intersects with the justice system, whether directly through the family law, child protection law, or criminal law, or indirectly through every other area of law where people are involved. As a result of that obligation and the magnitude of the crisis, the legal profession, including the way we regulate lawyers, the way we discuss the lawyer’s ethical and professional obligations, and even the way we theorize about the lawyer’s role, needs to start being inclusive of the complexities of family violence.

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[1] See generally: Jennifer Koshan, Janet Mosher, and Wanda Wiegers, Domestic Violence and Access to Justice: A Mapping of Relevant Laws, Policies and Justice System Components Across Canada, 2020 CanLIIDocs 3160 online: CanLII www.canlii.org/en/commentary/doc/2020CanLIIDocs3160#!fragment//BQCwhgziBcwMYgK4DsDW
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[2] See also: Jennifer Koshan, Janet Mosher, and Wanda Wiegers, “Covid-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence” (2021) 57:3 Osgoode Hall LJ 739 at 746-752.

[3] Evan Stark, “Re-presenting Battered Women: Coercive Control and the Defense of Liberty” (Paper prepared for Violence Against Women: Complex Realities and New Issues in a Changing World Conference, Montreal, 2012) at 7 online (pdf): Stop Violence Against Women www.stopvaw.org/uploads/evan_stark_article_final_100812.pdf.

[4] See generally: Bill C-247, An Act to Amend the Criminal Code (controlling or coercive conduct), 2^nd Sess, 43^rd Parl, 2020 (first reading 5 October 2020) (Private Member’s Bill, not likely to pass).

[5] See i.e.: Pamela Cross, et. al., Department of Justice, “What You Don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners” (2018) at 9-10 online (pdf): Department of Justice www.justice.gc.ca/eng/rp-pr/jr/can-peut/can-peut.pdf; Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (New York, NY: Oxford University Press, 2007) at 228-229.

[6] Peter Jaffe et al, Department of Justice, “Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce” (February 2014) at 12 online (pdf): Department of Justice www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/rfcsfv-freevf/rfcsfv-freevf.pdf.

[7] See Jaffe et al, ibid at 14.

[8] See: Jennifer Koshan, Janet Eaton Mosher, and Wanda Anne Wiegers, “The Costs of Justice in Domestic Violence Cases: Mapping Canadian Law and Policy” in Trevor Farrow & Les Jacobs eds., The Justice Crisis: The Cost and Value of Accessing Law (Vancouver, BC: UBC Press, 2020) available online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3598277.

[9] Heather Douglas, “Legal Systems Abuse and Coercive Control” (2018) 18(1) Criminology & Criminal Justice 84 at 85.

[10] Janet Mosher, “Grounding Access to Justice Theory and Practice in the Experiences of Women Abused by their Intimate Partners” (2015) 32 Windsor Y B Access Just 149 at 158.

[11] See: Mosher, ibid at 158.

[12] See e.g.: B(MW) v B(AR), 2013 BCSC 885 at paras 199-209; R(C) v M(A), 2015 BCPC 76 at paras 10 and 56-59; Hokhold v Gerbrandt, 2014 BCSC 1875 at paras 30, 131-132; aff’d 2015 BCCA 268; aff’d 2016 BCCA 159.

[13] See: Susan B. Boyd and Ruben Lindy, “Violence Against Women and the BC Family Law Act: Early Jurisprudence” (2016) 35 CFLQ 101.

[14] See: Tara Carman, “Survivors of domestic abuse told to keep quiet about it in court or risk jeopardizing child custody”, CBC News (27 September 2020) online: CBC www.cbc.ca/news/canada/domestic-abuse-custody-1.5738149.

[15] Groia v Law Society of Upper Canada, 2018 SCC 27 at para 3.

[16] Groia, ibid at paras 63-69.

[17] Alsawwah v Afifi, 2020 ONSC 2883 at para 104.

[18] Alsawwah, ibid at para 109.