By Jane Mundy
The Law Society of British Columbia (LSBC) has passed a resolution that a recently created Family Law Task Force will develop guidelines, in collaboration with the Canadian Bar Association, for the practice of family law lawyers in the province. But some Benchers have questioned whether guidelines are the best approach for an area of law that generates the highest proportion of complaints for the regulator.
At their January 26, 2007 meeting, the Benchers created the Family Law Task Force to address the lack of professional conduct and its effect on the public, and charged it with the responsibility to consider whether an amendment to the Professional Conduct Handbook is necessary, to determine whether a code or guidelines for family lawyers is necessary (and if so, mandatory or voluntary) and to report back to the benchers with its findings.
The decision to strike the task force arose following the Benchers’ Access to Justice, Ethics, and Independence and Self-governance Committees considered the various views and recommendations expressed in the Report of the Family Justice Reform Working Group on potential negative impacts on families and children of the traditional adversarial approach to matrimonial litigation.
Benchers agree that there are problems in family law and that this area of practice warrants special treatment regarding long-term effects it has on parents and children. "The greatest proportion of complaints comes from family law and cases continue to grow," said Carol Hickman, chair of the Family Law Task Force. "With BC's divorce rate at 38 per cent and half of those with kids at home, it is a growing concern."
Bencher Dr. Maelor Vallance pointed out that in family law, he sees aggressive and manipulative behaviour beyond personal injury. "Participants [in family law] look for more in lawyers than legal representation. They need an ally; they get upset when a lawyer doesn't win for them," he said. "Twenty-eight per cent of complaints regarding wrongdoing stem from family matters."
Both Benchers and the Family Law Task Force recognize a higher incidence of unprofessional conduct in family law than other areas of practice but don't believe that enforceable rules — possibly as an amendment in the Professional Conduct Handbook — is the best approach Rather, most Benchers recognize a need for family law lawyers to focus on education and professional development and that best practice guidelines in professionalism is also important for the public interest, especially for new, young lawyers.
The Task Force pointed out that that some lawyers practicing family law would feel singled out and personally attacked if a special set of rules was imposed upon them. As well, it is a difficult area to practice and adding rules of conduct could only exacerbate the problem. However, Hickman said that some lawyers she spoke with saw the advantages in developing best practice guidelines and it was suggested that clients could also benefit from receiving guidelines.
Questions arose at the LSBC meeting concerning the adoption of guidelines: would it constitute professional misconduct? Would there be a significant increase in disciplinary proceedings?
Patricia Schmit and Gordon Turriff, Task Force members and Benchers, were opposed to endorsing both an amendment to the code of conduct and guidelines for family lawyers In a dissenting view to the Law Society, they stated that lawyers "might be confused about what is required of them or about what might be enforceable against them if a code or guidelines were developed by lawyer advocacy groups, especially if Benchers or their representatives were involved in the process of development."
Benchers appointed members of the task force who were thought to have the right kind of experience for the task. Several lawyers have family law experience, and although Gordon Turriff is a civil litigation lawyer, he says that, "A lot of my practice arises out of client/lawyer relationships so I might have some useful experience involving them in family matters."
Turriff raised questions at this meeting such as who will write the guidelines; what will transpire at disciplinary hearings; and what is the nature of the product that is being produced? "Because there is a wide range of unanswered questions, the task force cannot subscribe to guidelines. …there is a lot more to be done," he said. In a phone interview, Mr. Turriff told The Lawyers Weekly that, "Because I can't support what they adopted, the right thing is to withdraw from the Task Force."
"My concern is the impact—I don't think we should set ourselves up for prosecution with these guidelines," said David Zacks. "If we are intent on change, hit the issue head-on: while family matters generate the most complaints I agree that education is needed and possibly make it part of professional development." However, guidelines cannot say that you have done something wrong — that would constitute rules.
Stuart Cameron reiterated the need for education and said: "Some areas of law—such as family law — are special and if you want to practice, you must have additional training, especially in human behaviour. If young lawyers receive education, over time, the Bar will change."