Family law is a challenging field. Aside from the ever-changing statutes and unpredictable judicial interpretation of these laws, along with the high emotional content of the work, there are difficult ethical dilemmas. Our lawyers’ codes of conduct are of only limited assistance for those seeking to resolve those dilemmas.
In an excellent paper published in the University of Western Ontario Journal of Legal Studies, Jennifer Hiatt identifies some of the conflicting instructions given to lawyers, and how they are irreconcilable in some cases.
For example, under the Law Society of Upper Canada’s Rules of Professional Conduct, lawyers have a duty to be fearless advocates for their clients (Rule 4.01(1); and they also have a duty to
not “knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime or illegal conduct.” (Rule 4.01(2)(e)).
How does one reconcile those rules where a lawyer knows that the client may take “self-help” action to advance their case?
Hiatt also refers to another pair of potentially conflicting rules: Rule 2.02(5) states that “When advising a client, a lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct, or instruct the client on how to violate the law and avoid punishment.”
But then the commentary to Rule 4.01(1) reads as follows: “In adversary proceedings that will likely affect the health, welfare, or security of a child, a lawyer should advise the client to take into account the best interests of the child. . . “.
These conflicting dictates could make it hard for a lawyer to know what to do if the client intends to defy a court order because of concerns about the welfare of the child?
The ethical dilemmas addressed in Hiatt’s paper are not new; but her suggestion for resolving them is a good one. Hiatt proposes that governing bodies give their lawyers some guidance by creating a hierarchy of rules, so that it can be easier for lawyers to apply them.
Jennifer L. Hiatt, “The Rules of Professional Conduct: A Conflicting Guide for Counsel in Child Custody and Access Proceedings”, online: (2012) 1:1 UWO J Leg Stud 4 <https://ir.lib.uwo.ca/uwojls/vol1/iss1/4>.
