Organizing Your Family Law Practice - Your Responsibilities

Your Responsibilities

By accepting a family law client, you are engaging in a process that is significantly different than the usual practice of law. You have a professional responsibility to ensure that your client is professionally and pragmatically guided through an often emotional and sometimes traumatic event. In addition to providing advice regarding legal remedies, you will likely need to assist with the underlying emotional issues by referring clients to doctors, counselors, psychologists and other professionals who can assist.  You may have to engage in discussions about how to protect a client from harm through police involvement or applying for a restraining order. You will have discussions with your client about the various dispute resolution processes, such as mediation, collaborative family law, arbitration and parenting coordination. Your client will likely express a need to feel supported by you. You will have to consider the extent of your ability to assist clients with the non-legal issues and have a list of other professionals on hand to refer clients to.  These additional issues make the practice of family law both rewarding and laden with responsibilities that differ from every other type of law.

As with all other areas of law, you must be organized to effectively manage your family law practice.  You can do so by considering the following points:

  • Anticipate issues.
  • Note limitation periods and deadlines.
  • Be responsive to your client's needs.
  • Delegate where practicable, cost effective, or necessary in order to be responsive.
  • Discuss and, where appropriate, promote dispute resolution processes other than litigation.
  • Keep a written record of all communications.
  • Regularly attend continuing legal education seminars on family law or find other ways of keeping up to date with developments in the law, such as following the recently released decisions on BC Superior Courts website.
  • Establish relationships with fellow family law practitioners you can consult with from time to time and attend your local CBA family law section meetings.

You must ask yourself if you are the type of person who has the ability, interest, compassion and commitment to practice family law.  To assist in this task, refer to the “Report of the Family law Task Force:  Best Practice Guidelines for Lawyers Practising Family Law” dated July 15, 2011 and prepared on behalf of the Family Law Task Force, Law Society of British Columbia.  The “Best Practice Guidelines” as set forth in the appendix to the report, while described as an “aspirational standard” and not as an enforceable code of conduct, suggest how lawyers should conduct themselves.  The “Best Practice Guidelines” have been endorsed by the B.C. Branch of the Canadian Bar Association at the meeting of Provincial Council on June 18, 2011.  It will also be useful to refer to Rule 1-3, “Object of Rules” of the Supreme Court Family Rules.

Family law is one of the areas of law where clients are more inclined to make complaints against their lawyers.

In addition to the usual matters involved in a litigation file, your client will be highly stressed, unsure of the manner in which to proceed, and worried about their emotional and financial future. Extra time, clarity, and good communication are required.

Your client may have no understanding of the relevant legal issues.  On the other hand, your client may think she or he knows what the relevant legal issues are, based upon information he or she has received from friends, relatives, or from the Internet.  It is your responsibility to explain what the legal issues are and how they, and the particular circumstances of the client, influence the range of likely outcomes. It is also very important to explain that the judge or master deciding the case might take a different view from your assessment and opinions.

The start of a family law file is a good time to discuss your client’s expectations as well as the difficulties that may be encountered in meeting those expectations.

It is important to help your client determine how to proceed. The first meeting is a good time to establish your client’s expectations – does he or she expect you to take an adversarial approach or to negotiate an agreement? Seek clear instructions on the approach that you will take, including:

  • the approach to take at the outset;
  • the dispute resolution process to be used; and
  • a time to review this strategy.

If, after receiving your advice on all options, your client wishes to litigate, you must make it clear to the client the likely timeframe, the financial costs of litigation and the emotional costs of litigation.  Even after providing this explanation, it is likely that your client may not fully appreciate the costs, the possibility of losing, or the difficulty of re-establishing a non-adversarial relationship with his or her spouse once the litigation is complete. To assist your client, set out the issues, approaches and likely consequences in writing.  This will allow the client to take the time to consider what approach to take.  Once the client has provided his or her instructions, confirm those instructions in writing.  You want to avoid the situation where your client has regrets about choosing the litigation path. The client is likely to blame you for poor advice at the outset.  You can mitigate this possibility by setting everything out in writing.

As the file moves forward, be sure to reconfirm your instructions in writing on a regular basis.  This will be particularly important in situations where a non-adversarial process appears to have stalled, or where the cost of litigation is increasing.  It is important to always keep your client informed about the process and ensure that he or she understands each step along the way.

If there is any part of practicing family law that you generally do not engage in, such as attending court, ensure that your client understands this from the outset. Some lawyers will try to settle files, but then pass the file to another lawyer in the event litigation is necessary. Your client must be informed of these potential limitations at the outset.

Community Discussion

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After practising in this area of law for many years, I agree that family law clients require a special set of skills in the areas of communication and an awareness of family violence issues, particularly given its expanded definitionin the family law area.  If the client exhibits emotional and psychological difficulties and there are children, the lawyer should be adress the issue of minimizing the negative emotional/psychological impact on the children by outlining that parent conflict behaviours can be very harmful, including physical violence of any sort; denigrating, blaming, putting down or intimating negative information about the other parent; and manipulating the child to ally the child with his or her "position".  The lawyer should strongly recommend that that there be no arguing or discussing legal issues with the children.  The next issue that must be addressed is that how to tell the children about the separation.  If resources are available, I recommend that early in the process the parents jointly attend a meeting with a child psychologist or a parenting coordinator to discuss this subject, how the actual separation will take place and what interim parenting schedule would be appropriate.

My general practice is to discuss all alternative dispute resolution methods:  (1) collaborative law; (2) mediation with or without lawyers, (3) direct negotiation through lawyers, and (4) litigation.  In my view, except in cases where a Protection Order is required, an attempt ought to be made to obtain the necessary documentation, including the sworn Form 8 Financial Statement,to begin in the negotiating of an agreement.

If a client is "hell-bent" on litigation from the outset, I review the emotional and financial costs, and the uncertainty of outcome, particularly now as there are many areas dealing with Part 5 of the Act that remain unclear i.e. case law on "significant unfairness", gifting as between spouses, and the tracing provisions.

Also as a matter of practice, I do not sent any correspondence containing any material information or instructions without the client having time to review and consider the correspondence.  I think that it is not only important as to "what" is said" but also "how" it is said.

I agree that it is essential to be informed about possible resources if a client is experiencing emotional or psychological problems, particularly depression and anxiety, which may be impacting on his or her judgment and with children of the relationship.  I keep various files on various resources, which includes CV's, including psychiatrists, psychologists, clinical counsellors and parenting coordinators.  The choice will, of course, depend on the resources available.  In my view, one should carefully consider the client and the particular professional being recommended as one professional's personality or approach may not be appropriate for a client.

Our firm has created a comprehensive Family Violence Checklist which is undertaken in almost all cases and which is kept on file.  The legal assistant or paralegal is thus aware of family violence dynamics related to the file and will inform them on how to communicate with the client and what the client is capable of at any given point.

While it is important that a trusting, supportive relationship is established between lawyer and client, it is equally important that the client understands one's skill set i.e. we are not psychologists or family counsellors.  This is part of managing client expectations and also to minimize unnecessary legal costs.

Our firm has created a very detailed case management and limitation period spread sheet that is updated as each step is completed.

I keep detailed records of every conversation.  If something unusual comes up in the course of a telephone conference or meeting, I draft a Memo to File, which contains further particulars of the communication.

Althought I do not plan on seeking accredation as a parenting counsellor I find these courses very helpful.  The last one I attended was at the University of Chicago taught by Dr. Joan Kelly, one of North America's leading expertson parenting issues.

I think I have addressed other points under this heading earlier.

Management of expectations and careful explanation of the process is necessary for the successful practice of family law. This page creates a very good framework of the lawyer's responsibility from the very first moments he or she meets the client. I particularly agree with the statement that the lawyer should speak with the client with respect to the judge having a different opinion and that the outcome may be surprising to everyone, which would encourage the client to look at options other than costly litigation.