Professionalism & Ethics in Family Law: The Other 90%, Part II – What does it mean to be ethical in an innovative process?

Professionalism & Ethics in Family Law: The Other 90%, Part II – What does it mean to be ethical in an innovative process?

This post is the second instalment in a series of posts by Deanne Sowter, which explores the Ethical and Professionalism dilemmas within Family Law. This post delves further into ethical considerations introduced in the first post. You can find her first post here.

By Deanne Sowter*

What I have learned so far…

I am working on my research project that looks at ethics and professionalism in family law ADR, by reading papers, talking to professionals, and getting ready to host some round-table discussions. I continue to ask myself: what behaviours are considered to be unethical for professionals practicing family law ADR? The more research I do, the more I have come to realize that I have entered into the wild west of legal ethics. Many academics have tread this ground before me, but innovation in legal process and the impact on our understanding of legal ethics continues to inspire and trouble practitioners and academics alike. To start with, what does it mean to be ethical? We need to begin there in order to determine what it means to be unethical. In litigation there are clear rules and boundaries, but in ADR those norms no longer apply; advocacy and what constitutes ethical behaviour, takes on a new dimension.

Is this an ethical question?

I need to define what I mean by ethics. I am following Professor Trevor Farrow’s lead and distinguishing between professionalism and ethics.¹ The term ‘professionalism’ reflects the codes of conduct that serve as guidance for what a lawyer should understand to be right and wrong – rules that shape what it means to be a professional and what the public can in turn measure our conduct by. The term ‘ethics’ or what it means to be ethical incorporates the lawyer’s own personal moral deliberation. Legal ethics do not have the same black and white boundaries that are provided by the codes of conduct and other professional rules and standards, making it more difficult to define and discuss, for it is inevitably viewed through each lawyer’s own moral lens. That said, codes of conduct obviously incorporate ideas that are not only demarking clear boundaries but are infused with ideal behaviours every lawyer should embody, including integrity and honour. These ideals could include an understanding of what it means to be an ethical lawyer, but for my purposes they will remain within the category of professionalism. Perhaps it is a somewhat artificial distinction between the two, but it is important to set the boundary in order to frame any discussion. Professionalism applies in a uniform way across all processes, litigation and ADR inclusive; whereas ‘ethics’ and what may constitute unethical behaviour begins to look different depending on the process.

So, if ethics incorporates the lawyer’s own moral compass, what does it mean to be ethical in ADR? How do we measure it? How will new professionals know what norms apply? And how will the public know how to measure a professional’s behaviour?

You could say that nearly every decision made in ADR has an ethical element to it, for instance:

  • What process should the lawyer encourage?
  • How should the lawyer disclose information to the other side?
  • What information should a mediator disclose to the other side?
  • What kind of conversations should the lawyer have with the other side?
  • What kind of conversations should the lawyer have with their client?
  • In mediation, how does / can the mediator ensure balanced negotiations and prevent manipulation or intimidating tactics?
  • In negotiation, what type of pressure (if any) is acceptable for a lawyer to exert on their client to settle?
  • In collaborative law, what can / should a lawyer do if the spouse takes a hard-line or extreme position to seek an advantage, or if your client wants to bluff or exaggerate to ‘get a better deal’.

Each choice has a moral aspect including the lawyer’s personal understanding of fairness and justice. Within each ADR process is a further subset of ethical dilemmas and accepted norms unique to that process.

Uncollaborative Behaviour

I attended the International Association of Collaborative Practitioners Conference in Washington, D.C. in October, 2015. The Forum, as it is more commonly known, is attended by collaborative practitioners from around the globe – family lawyers, academics, coaches, family professionals (social workers and child specialists), and financial professionals, who gather annually to share insights, brainstorm and regenerate their enthusiasm for collaborative family law. It was a fun and enriching experience. For me, there were two things that really stood out. The first was the noticeable difference in how collaborative family law is practiced depending upon geography. In Toronto, an approach has been created that may be modified for each family – part of the beauty of collaborative law – but the basic model is different than what is commonly used in other cities in the USA and in Australia. So I need to be mindful in my study that my focus will be Toronto-centric and that accepted ethical norms may therefore be different elsewhere. (Note to self: topic for a future study!)

The second highlight was the Ethics Café. The Co-Chair of the IACP Standards Committee led an Ethics Café which allowed senior collaborative professionals to gather and talk through scenarios that presented ethical challenges. I joined a group of individuals that were talking about ethical challenges involving clients. The existing Standards provided little guidance (and whether they should is debated). As we talked through several of the scenarios (which we could have discussed all day), we often came to the same conclusion: some of the behaviours were not necessarily unethical but rather ‘uncollaborative’. Even if we were uncertain whether the behaviour was unethical, we were certain that it was ‘uncollaborative’.

So what does it mean to be ‘uncollaborative’? Is it different than being unethical? In our group, we seemed to think that it was. We considered it a less severe form of unethical behaviour perhaps, but we didn’t have time to define what the difference was. Perhaps it was due to the interdisciplinary nature of collaborative law (different professionals with different professional obligations and standards) that the participants coined the term; a response to competing professional obligations – a way to have a shared standard. (My research focuses on lawyers on a collaborative team, but further research is required that incorporates the competing professional perspectives on a collaborative team.) Or perhaps, it was coined as a way to explain a consensus that certain behaviour is detrimental to the collaborative process, but does not rise to the level of being ‘unethical’ as the term is more commonly understood. This will definitely be something that I revisit in the upcoming roundtable discussion with collaborative lawyers.

Are there any conclusions yet?

There are a few conclusions that I have made at this early stage: (1) this research is needed more than I originally anticipated and I am already certain that I will only scratch the tip of a large iceberg (there is more than one PhD topic here); (2) the standards, rules and codes are not helpful; and (3) the process will provide the margins of accepted norms, but I anticipate three distinct spheres of behaviours will emerge – one for each ADR process. I am curious to see what areas may overlap between each sphere, if any.

Finally, thank you in advance to everyone who has agreed to participate in the upcoming roundtable discussions. I have been happily surprised and inspired by the enthusiasm of the participants. Their eagerness to be part of the discussion confirms my suspicions that we all grapple with these ethical dilemmas in our practices. I am looking forward to our discussions!

 

*Deanne M. Sowter, BFA (York), MFA (American Film Institute), JD (Osgoode Hall Law School), is the 2015/16 OBA Foundation Chief Justice of Ontario Fellow in Legal Ethics and Professionalism Studies, and a Research Fellow at the Winkler Institute for Dispute Resolution. Ms. Sowter practices Family Law, specializing in negotiated settlements. Ms. Sowter summered and articled at a full service Bay Street firm, and prior to becoming a lawyer Ms. Sowter worked in the film industry for 13 years. Ms. Sowter’s research interests lie in the areas of family law, professional ethics, and alternative dispute resolution.


¹See generally, Trevor Farrow, “Sustainable Professionalism” (2008) 46.1 Osgoode Hall LJ 51.