Professionalism & Ethics in Family Law: The Other 90%
By Deanne Sowter*
As the 2015/16 OBA Foundation Chief Justice of Ontario Fellow in Legal Ethics and Professionalism Studies, and with the support of The Winkler Institute for Dispute Resolution, I am conducting a research project on the links between research and practice, involving empirical research on ethical decision-making in family law alternative dispute resolution (ADR).
Alternative dispute resolution methodologies are largely unregulated and informal. Lawyers working with family law clients using various forms of ADR face ethical challenges regularly. Many of the papers and cases that are written about professionalism and ethics in family law consider the sharp practice and legal bullying that occurs in litigation; it is this sort of behaviour that gives family law a bad name. These norms do not necessarily apply to a settlement-focused practice. Many family lawyers are working in the shadows of litigation, or as in collaborative family law they have agreed not to litigate or threaten litigation while in the collaborative family law process. The goal of this research is to look at all three components that serve as guidance for family lawyers when dealing with ethical challenges in family law ADR: codes of conduct and professional standards, academic research, and ethics in practice. The project will consider ethical decision-making that occurs on the path towards settlement, specifically in collaborative practice, negotiation and mediation.
The definition of ‘ethics’ will likely evolve throughout my research, but the foundational principle focuses on ethical dilemmas involving competing courses of action. Although the issues of confidentiality, conflicts of interest and competence will be considered, I consider those areas to fall within the scope of professionalism and I am more interested in ethical decision-making as it is broadly understood and which often involves personal moral deliberation. My goal is to position the definition of ethics within the framework discussed by Julie Macfarlane, as value-based choices between competing courses of action,1 and Trevor Farrow, who has argued for ‘sustainable professionalism.’2
The research will be divided into three parts: (1) A review of the academic literature that discusses ethics and professionalism in family law ADR; (2) a review of the professional codes of conduct and standards; and, (3) ethics roundtables and / or interviews with: (a) family law lawyers (with a focus on negotiation); (b) mediators; and, (c) collaborative family law lawyers. The final research will be presented in a research paper and at the International Legal Ethics Conference (ILEC) VII in NYC next summer.
The inspiration for this research has two components: my work as a family law lawyer; and, the Cromwell Report: Meaningful Change for Family Justice: Beyond Wise Words.3 The Report suggests that a review of family law education in Canada should occur, and that it could support the ongoing adaptation of legal culture to the realities of family law practice while stimulating student interest in family law.4 The Report suggests that ADR knowledge and skills could be reinforced in more than one place in law school curricula.5 While my research does not propose to delve into legal education reform, it does look at the academic literature available in this regard to determine what work is being done, and how professionalism and ethics in family law ADR are being discussed.
Ethics in Practice
The ethics roundtables and interviews will seek to explore the decision-making process that occurs on the path towards settlement. Through the presentation of scenarios that require the choice between competing interests or courses of action, I hope to solicit a discussion about what the participants consider ethical challenges, what behaviours they view as unethical, and their corresponding decision-making process.
Family law negotiation often takes place through letter writing, phone calls, and four-way meetings. It often occurs in the shadows of litigation, under the assumption that if the parties do not reach a settlement, they will end up in court. It is a powerful incentive to settle, and is an elephant in the room guiding the process. At this early stage in my research, I am exploring the following challenges to frame the discussion:
- The lawyer’s own ethical beliefs and moral compass;
- The zealous advocacy model;
- Competing interests;
- Offers to settle (framing); and,
- Self-represented litigants.
The role of the mediator is obviously very different from that of the negotiator. A mediator is a third party who has an equal responsibility to both spouses. Mediators have more in common with adjudicators; however, they are without procedural constraints and substantive rules, creating ethical complexities. The following issues will be the focus of the mediator prong:
- The same lawyer acting as both mediator and arbitrator;
- Approaches to mediation – facilitative and evaluative;
- Process management;
- Are mediators responsible for fair outcomes; and
- The mediator’s own moral compass and ethical beliefs in decision-making.
(3) Collaborative Law
Collaborative family law is a form of interest-based negotiation. It is a relatively new process, presenting a unique set of ethical challenges. In collaborative family law, a collaboratively trained lawyer must represent each client. Practice groups serve to create professional circles that are used to refer work and arguably maintain standards. The following ethical dimensions will likely be at the heart of the collaborative piece of the research:
- Informed consent (offers to settle, the participation agreement, pressure to stay in the process);
- The conflict between privilege, the spirit of full disclosure, and client interests;
- Practice groups and the potential for inappropriate professional relationships and conflicts of interest;
- The zealous advocacy model and the role of advocacy in collaborative law; and
- The role of the legal model.
I am excited to embark on this fellowship! I will be looking for mediators, collaborative lawyers, and family law lawyers who specialize in negotiated settlements to participate in the roundtable discussions or interviews. Please let me know if you are interested in participating and stay tuned for updates throughout the year!
*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.
1Julie Macfarlane, The New Lawyer (Vancouver: UBC Press, 2008) at pg. 197.
2 Trevor Farrow, “Sustainable Professionalism” (2008) 46.1 Osgoode Hall Law Journal 51.
3 Family Justice Working Group (Toronto: Action Committee on Access to Justice in Civil and Family Matters, 2013), online: <http://www.cfcj-fcjc.org/>.
4 Ibid at 28.