25 July 2011

Law Society Approves Practice Guidelines for Family Law

The Law Society of British Columbia has endorsed a package of best practice guidelines (PDF) recommended by its family law task force with much input from a working group established by the Canadian Bar Association British Columbia. The impetus for these guidelines stems from the Family Justice Reform Working Group's 2006 report, A New Justice System for Children and Families (PDF), which recommended that:
"... the Law Society of BC 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."
The guidelines are true guidelines, in the sense that they set out practice standards to be aspired toward rather than a compulsory code of conduct, and what's most interesting about them is that they could easily apply to all participants in the justice system, not just lawyers.

BEST PRACTICE GUIDELINES FOR
LAWYERS PRACTICING FAMILY LAW

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. (Lawyers are not obliged to assist persons who are being disrespectful or abusive.)

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 wellbeing 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.

These principles all strike me as reasonable. They reflect how I practice family law and how I would like all lawyers to practice family law.

3 comments:

  1. My experience with legal services client is they have a free lawyer and are often "out to get" the other party. What is unfortunate is if the lawyer relies primarily on LSS referrals to financially survive, if as a lawyer you are not aggressive, they will request another lawyer. The consequence of this is LSS notes your clients feel you are not effective and stop giving you referrals. LSS clients do not have the inhibiting factor of having to come up with a retainer.


    Further as far as getting involved with helping LSS clients see psychologists, etc. there are 2 problems. Firstly, they are often on social assistance and have no funds for private services such as psychologists or parenting coordinators. Yes there are family justice counsellors but to put into effect the spirit of the Family Law Act, it may require ongoing assistance which free service providers may not be willing to provide and LSS seems to authorize the use of professionals for a one-shot deal-not for ongoing counselling.

    I am completely in support of the FLA's objectives of staying out of court but LSS clients are often not receptive to a non-adversarial approach and slam their lawyers to LSS if the lawyer pushes a collaborative approach. Further, LSS.will likely not pay for ongoing services to resolve issues beyond one mediation, not ongoing work to try to get bitter adversarial parties to work things out when their preference is to use their free lawyer to fight it out in court. I have been able to use the hours allowed for collaborative processes very little. And the number of hours for prep and collaborative processes are minimal.

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    1. You raise an important point that has been lacking in the discussions about the FLA so far. There have been no announcements about new funding that will help implement some of the key new provisions for parties of limited means. This is an issue which has been raised with government, but nothing seems to have come of it thus far.

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  2. Legal aid is a world unto itself. Underfunded. Limited hours allowed. If we have to spend time trying to find counsellors, etc. who will offer free services, that uses up those minimal 25 hours faster. Plus we are dealing with the effects of low income clients with dysfunctional relationships and abuse (don't they need abuse to get LSS coverage?), a free lawyer and clients who will litigate oanything no matter how unreasonable because it is "free" who would rather fight than settle and complain to LSS if you try to implement the spirit of the FLA. rather than sggressively pursue every last minor detail. I am painting all LSS clients with the same brush which is not accurate but many are psychotic or have serious mental health issues. These are not people a lawyer can reason with. In light of the FLA the whole LSS system needs to be overhauled. Clients who will not cooperate in implementing the objectives of the FLA need to risk losing LSS coverage. Lawyers need to be paid more to account for the added responsibilities. More hours need to be added. We need to be provided with a list of no-cost resources for clients to contact to help resolve their differences. If clients will not use these resources, they should be cut off legal aid. There are good legal aid clients - then there are the others. LSS has a lot to do to help ensure the objectives of the FLA are met. It cannot fall on the shoulders of struggling poorly-paid legal aid lawyers.

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