In a recent discipline decision from Ontario the presiding adjudicator, David Wright, spoke a sensible caution to family law lawyers whose passion for their clients’ causes can obscure their professional objectivity. He also referenced the problem faced by some counsel who in their minds blend opposing counsel with their clients, castigating them as the “enemy”.
Other comments included the following
“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.”
In the case before Mr. Wright, a senior family law lawyer in a contentious divorce proceeding sent 14 pieces of correspondence over a two year period to opposing counsel. The letters contained threatening, inappropriate and unprofessional language. In a second incident the Lawyer became upset during a court hallway discussion with opposing counsel and raised his voice beyond a level that was professional or acceptable.
The third allegation involved the Lawyer’s courtroom submissions where opposing counsel referred to the Lawyer’s argument as “disingenuous”. The judge later directed the lawyers to work together on a worksheet regarding the trial, but the Lawyer refused to participate until opposing counsel apologized for calling his argument “disingenuous” and made a threat to opposing counsel. The adjudicator found that the Lawyer’s behaviour lacked civility.
Adjudicator Wright noted that family law lawyers work together on different cases and often have multiple files with each other during their professional careers. While this can help promote collegiality, counsel must be able to put aside past perceived wrongs or disputes and start fresh with each new file.
My experience in the B.C. family law bar is that opposing counsel are courteous and civil, however, as a junior lawyer, now many years ago, one senior counsel took advantage of my inexperience with unexpected rudeness and aggression. I later learned she was one of those lawyers who other counsel avoided where possible. I later turned down cases where this lawyer was opposing counsel in order to avoid her nastiness. Lawyers who cultivate this style of practice are only to be pitied, as they must be terribly unhappy with their lives. That’s my two cents!
Lawdiva aka Georgialee Lang