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You Jump, I Jump: The Perils of Over-Identifying With a Client

Over-identifying with a client can impair objective representation. The Law Society of British Columbia’s “Common-sense Guidelines for Family Law Lawyers” includes nine “Best Practice Guidelines for Lawyers Practicing Family Law”. The second one is that “lawyers should strive to remain objective at all times” and should not “over-identify with clients or be unduly influenced by the emotions of the moment.” In the midst of doing some research recently, I did a search on CanLII of professional misconduct decisions involving family lawyers and I came across an interesting relationship. Of the first thirteen decisions that I looked at, five of them (involving three different family lawyers) involved a lawyer who had experienced their own acrimonious family law matter, and that experience was intertwined with why they ended up violating their professional obligations – they were unable to remain objective. My small sample is not statistically interesting enough to point to any larger trend, but it did make me think about the perils of over-identifying with a client, and how seemingly easy it is to do that. In this post, I suggest that over-identifying can cause a lawyer to become hyper-zealous or violate the duty of loyalty. As a result, perhaps family lawyers have a heightened responsibility to be self-reflective and self-aware of their own triggers in order to avoid the risks that flow from over-identifying with a client or their interests.

What is Over-Identifying?

The Federation of Law Societies of Canada Model Code of Professional Conduct does not include a provision specifically about over-identifying, or neutrality more generally, but the requirement to remain objective is implicit throughout. Warning about the risks created by over-identification seems to be more about what a lawyer becomes willing to do once she has stepped over that line and started to see her client’s case as her own. In short, over-identifying with a client or their interests can create a conflict of interest (R 3.4). This is not about a lawyer preferring her own personal financial interest, or an improper relationship with her client or another party, but rather the lawyer’s own emotionality being triggered in a way that impedes her ability to provide objective representation. The conflict creates a risk that a lawyer may violate the duty of loyalty or fail to fulfill her duties to the administration of justice. In which case, several provisions of the Model Code also become triggered, including integrity (R 2.1), competence (R 3.1), quality of service (R 3.2), and depending on the lawyer’s improper conduct, R 3.2-7 (dishonesty, fraud by client), advocacy (R 5.1), and civility (Rs 5.1-5 and 7.2-1). Over-identifying could also mean not being zealous enough, depending on how the lawyer responds to conflict generally. In other words, the risk is not just about what the lawyer is willing to do, but what she is no longer able to do.

Relationship breakdown is emotional. It is well-known that the emotionality that occurs at the end of a relationship can cloud judgement.[1] Parties are required to make decisions about their independent futures at a moment where they are least able to think clearly. In a way, it is nonsensical that we expect people to be able to make rational decisions about where their children will live, their economic well-being, and their future plans during such emotional upheaval. This phenomenon is recognized by the Supreme Court of Canada in the context of family law negotiations. Justice Abella acknowledged that there is “no doubt that separation agreements are negotiated between spouses on the fault line of one of the most emotionally charged junctures of their relationship – when it unravels” (para 40). Similarly, in Miglin, Justices Bastarache and Arbour held that:

[74] … Negotiations in the family law context of separation or divorce are conducted in a unique environment. Both academics and practitioners have acknowledged that this is a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable. Unlike emotionally neutral economic actors negotiating in the commercial context, divorcing couples inevitably bring to the table a host of emotions and concerns that do not obviously accord with the making of rational economic decisions.

Given the emotionality of relationship breakdown, and the central role a family lawyer plays in that negotiation, it seems obvious that it is also possible for a lawyer to become embroiled in that emotionality too – to over-identify. In Bassett v Magee, 2018 BCSC 2322, a high conflict case, a spouse wanted opposing counsel disqualified for malicious prosecution. In refusing to disqualify counsel, Justice Marchand observed that, although it “should never occur, sometimes counsel are drawn into the parties’ conflict or, for other reasons, become part of the problem rather than the solution” (para 2). Instead, Justice Marchand wanted “the parties and their counsel to turn their focus away from relentlessly attacking each other and towards resolving the parties’ differences in a principled and fair fashion” (para 147).

Of the three lawyers that were revealed in my search, one represented himself in his own family law matter and engaged in professional misconduct in that context, and the other two were influenced by their own acrimonious family law matters. These cases provide three examples of the ways that over-identification can wreak havoc on a lawyer’s ability to comply with their professional obligations. First, self-representing and in doing so, using the justice system to impose improper pressure on the opposing party. Second, by over-identifying with the client to the point of taking on the client’s case as the lawyer’s own and becoming hyper-zealous as a result. Or, third, by over-identifying with a client to the point of impaired representation and violating the duty of loyalty. These cases involved incivility, sharp practice, improperly withdrawing from a file, acting in a conflict of interest, frustrating or misusing the justice system, acting without integrity, and impairing the administration of justice. Two of them could have led to a disqualification action, and they all lead to prosecution by the law societies, ultimately harming the reputation of the legal profession and the individual lawyers.

Edwards

In Edwards (Re.), 2020 LSBC 21, Mr. Edwards represented himself in his own family law matter. He was not a family lawyer; his practice consisted entirely of motor vehicle plaintiff and criminal law (para 69). The hearing panel of the Law Society of British Columbia found that he engaged in professional misconduct for frustrating or misusing the court process by, among other things, filing requisitions on consent which were not actually agreed to, threatening to and instituting legal proceedings for an improper purpose, and utilizing the legal system to harass and intimate his former spouse (paras 1 and 191-198). He was found to have used his “legal expertise to bring improper pressure to bear on his opponents in legal proceedings” (para 197). His conduct was not just focused on his former spouse; he was also uncivil towards opposing counsel; commenced a suspiciously timed civil action against his former spouse’s new partner; and was not cooperative with the Law Society during the disciplinary investigation (paras 78, 86, 152-159).

Mr. Edwards’ behaviour was found to be harmful to himself and others, and he was warned that he had to change his behaviour. Mr. Edwards was warned on two separate occasions by Justice Ross and Justice Schultes that his conduct was “unacceptable”, that it could have a negative effect on his professional reputation and lead to disciplinary action (paras 153 and 158). His conduct was said to inflict stress on his former spouse and harm her financially, there was some evidence that his conduct had a “detrimental effect on his children”, and his conduct was found to have “harmed the reputation of the legal profession as well as the administration of justice” in addition to his own professional reputation (para 161). Despite those warnings, and the corresponding damage he was inflicting, Mr. Edwards did not adjust his conduct.

The Law Society hearing panel found he had committed professional misconduct. The Law Society argued that “[w]hile emotions can run high in family litigation, as a lawyer, the Respondent had a duty to keep those emotions in check and act with decorum and courtesy” (para 162). The hearing panel seems to have agreed.

Ludmer

In Law Society of Upper Canada v Brian Allan Ludmer, 2012 ONLSHP 191 and Law Society of Upper Canada v Brian Allan Ludmer, 2013 ONLSHP 114, Mr. Ludmer was found to have engaged in professional misconduct for providing misleading evidence to the court through an assessor, and incivility towards his client’s spouse, her lawyer, and the assessor. Four years later, in Law Society of Upper Canada v Ludmer, 2017 ONLSTH 28, Mr. Ludmer was found guilty of professional misconduct for incivility a second time, in relation to four separate incidents. But importantly, those incidents occurred prior to the counselling and psychotherapy that was ordered the first time (para 2).

Unlike Mr. Edwards, Mr. Ludmer was not representing himself, but he had personally gone through an “acrimonious family law litigation” involving allegations of alienation (para 1). The first case of professional misconduct was also his first time representing a family law client. Prior to that, he had been a corporate and securities lawyer, but he seems to have switched practice areas after becoming motivated by his own family law matter. The agreed statement of facts from that case says that Mr.Ludmer “feels most passionately” about alienation, and “empathizes keenly with people who believe their relationship with their children is being destroyed by the other parent.” In 2017, the Law Society Tribunal said that Mr. Ludmer’s passion about alienation “caused him to overstep the bounds of civility and to act in an unprofessional manner toward opposing counsel and their clients” (para 1). The Tribunal Chair also took the opportunity to write directly to Mr. Ludmer, emphasizing the dangers of losing professional objectivity when representing a family law client.

[15] Family law involves personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, particularly when we have our own histories. However, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must separate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story. What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses involved in a family breakup, the most stressful time of their lives, to do so? What are we modelling? The legal profession will fall in the public eye if lawyers act in an unprofessional and uncivil manner.

Mr. Ludmer had not been publicly disciplined by the Law Society prior to switching to family law practice, and the incivility seems to have been addressed because there are no further decisions. It appears as though there is a direct thread between Mr. Ludmer’s own acrimonious family law matter, and the incivility he deployed when representing family law clients. The Chair said it best: “Lawyers are representatives, and litigators must resist the temptation to take on the client’s cause as their own or blend opposing counsel and their clients in their minds” (para 14).

Rapoport

In Law Society of Upper Canada v Rapoport, 2015 ONLSTH 124 and Law Society of Upper Canada v Rapoport, 2016 ONLSTH 47 Mr. Rapoport was found guilty of professional misconduct, for among other things, advising his client to enter into an unprofessional retainer agreement that allowed him to get off the file at will, giving his client an ultimatum that he would not continue representing her unless she signed consents to judgement to pay his fees, and then ending the retainer anyway. He also communicated with his client in an abusive and offensive manner. He called his ex-wife a b*** and a s*** in front of his client, which the tribunal found were “highly misogynistic terms, reserved for the derogatory description of women. The Lawyer’s language demeaned his former wife because of her sex, and by extension, they also demeaned his female client” (para 65). His former client provided a victim impact statement in which she described her experience as his client as one that caused her to feel “devastated”, “betrayed”, “abandoned”, “demeaned, powerless, used and ripped-off” (paras 5-6).

Around the same time that the misconduct in this case occurred, Mr. Rapaport was involved in his own “acrimonious” family law case, where he represented himself during a 24-day trial that resulted in him gaining sole custody of his two children (paras 7 and 12). His case had caused him to incur debt and added significant stress to his life. In advance of the penalty decision, Mr. Rapoport submitted evidence from a Psychologist who found that his behaviour was largely uncharacteristic, and was driven by a “complicated relationship with his own mother”, a strong reaction to “women that he perceives to be manipulating him” and the coinciding stress of his own family law matter (para 9). Mr. Rapoport was found to have been in his own “personal hell” which he seems to have taken out on his own client (paras 9 and 32). Good character evidence supported the fact that this conduct was “out of character for him”, and that his own family law matter had taken an “emotional toll” on him (para 18).

Although Mr. Rapoport had been practicing family law for 30 years prior to these events, like Mr. Ludmer, there seems to be a direct line between his own acrimonious family law matter and the over-identification, though this time it caused him to lash out against his own client, not the opposing party. Unfortunately, it seems as though Mr. Rapoport’s conduct did not change after those events. Last month he was found guilty of professional misconduct again, this time for incivility and breach of confidentiality among other things, involving six more clients. (See: Law Society of Ontario v Rapoport, 2021 ONLSTH 43.)

The Importance of Partisan Neutrality

A lawyer’s role is to provide access to the law for her client, to be an advocate and to represent her client’s interests. In doing this, a lawyer ought to be neutral as to the moral merits of her client’s cause, and in return the lawyer is shielded from any accountability for having helped a client act immorally.[1] By preventing the lawyer from considering the moral merits of the client’s interests, the principle of neutrality works to prevent the lawyer from restraining her zeal or diligence. The reverse is also true, neutrality helps to prevent a lawyer from overly aligning with the client’s interests, thus safeguarding a lawyer from losing her objectivity and risk violating her duties to her client and the administration of justice. Regardless of what she feels personally, once a lawyer has agreed to represent a client, if her client’s wishes are not illegal, then the lawyer must pursue them within the bounds of the law. The law is what shapes what we, as citizens, are permitted to do, not subjective ideas held by a lawyer as to what is right or moral.[2] That said, there are those who disagree with this model, and ask instead that a lawyer and her client achieve a sort of moral alignment, investing the lawyer in the client’s objective. One of the reasons that neutrality is so important for lawyers is because it ensures that everyone has representation, regardless of the dubiousness of what they want from the law. If the client’s goal is lawful, the moral merits ought not be considered, the client can pursue their lawful goal within our system of laws.

As Justice Marchand said in Bassett v Magee: “Law is (or should be) a humbling profession. It requires some level of self-reflection and adjustment” (para 134). The dangers of over-identifying underscore to me the necessity of the principles of neutrality and non-accountability regarding the moral merits of the client’s cause. In family law, there’s a real danger of over-identifying, of losing that neutrality. We are all members of families and carry emotional baggage. The principle of neutrality serves to protect the client, their spouse and children, and the public. It seems, however, that to maintain neutrality’s intended effect it also requires a lawyer to engage in some degree of self-reflection so she can see the line between being a good partisan advocate and impaired representation. As the title of this post indicates, over-identifying with a client is not a sign of loyalty, it is not a propeller of good advocacy; rather over-identifying with a client suggests a loss of objectivity and a risk of impaired representation.

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[1] See generally: Howard Erlanger, Elizabeth Chambliss and Marygold S Melli, “Participation and Flexibility in Informal Process: Cautions from the Divorce Context” (1987) 21:4 Law & Soc’y Rev 585; Lynn Mather, Craig A McEwen and Richard J Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (New York, NY: Oxford University Press, 2001); Andrea Kupfer Schneider and Nancy Mills, “What Family Lawyers are Really Doing When they Negotiate” (2006) 44:4 Fam Ct Rev 612; Robert Mnookin, “Divorce Bargaining: The Limits on Private Ordering” (1985) 18:4 U Mich JL Reform 1015 at 1019-1024.

[2] See: W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton, NJ: Princeton University Press, 2010) at 6.

[3] See: Wendel, ibid at 86-87.

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