Organizing Your Family Law Practice - 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.