Monday, 3 November 2014

To Thine Own Self Be True

Early in my legal career, perhaps even before it started, I remember a scene of movie from the United States of America starring a man in his 40s. He played a lawyer and he had become completely disenchanted with the legal profession, as a result of all the injustices he had seen. At the time I wondered how that decline or deterioration could occur. How could he lose faith so completely in the law?

In recent times I found myself being able to empathise with that character. Constant exposure to injustices, some of them profound, can certainly be energy sapping; ultimately it can be soul destroying.  One of the hardest things to deal with is the seemingly unrelenting dishonesty.

A Twitter Exchange
A Twitter exchange about my Reflection Informs Perspective article lead to a discussion about the ethical and professional challenges that can be presented by practising in Family Law. It arose as I was making notes upon which to base my cross-examination article. The latter two (2) being inspired by a case with a complex matrix of facts, including:

  • Whether the parties had disclosed all relevant material;
  • Whether the lawyers retained had made proper prudent enquiries to be fully informed about the case;
  • Whether the lawyers had advised the litigants what result a Court might reach, if it had to decide the matter;
  • What personal and financial tolls might be involved with the various options available for the case.

The case was even more complex because it also involved the children of the litigants and there was an overriding requirement that any decision made in respect of them would be in their best interests.

My colleague posed the question, whether in a civil action one should ally oneself to a cause one considered unjust?

I replied, “That one's personal views and professional obligations may conflict is an ever-present challenge”.

He agreed and added, “may it ever be so lest our consciences atrophy from lack of exercise”.

That inspired me to reflect upon Family Law practice and how it can present even more complex challenges. The cases litigants want to run are not always in the best interests of the children concerned. As my colleague observed, that can be “a difficult road for the lawyer of conscience to tread”. He was interested how one deals with it.

I knew of a case that posed some very real ethical and professional challenges. How does one respond to those challenges? Understanding effective in-court advocacy informs good case preparation. One does not have to be adversarial to be successful.

My colleague further enquired:

  • Where does the ethics of care fit in?
  • How do you determine the client's best interests?

Confronting Reality
I have said previously once engaged I am obliged to do my job to the best of my ability.  In that regard I pursue the instructions of my client and relegate any personal views I have, with the exception that I must always honour my primary duty to the Court. The justice that can be achieved by a litigant is justice according to law.

As I said in my Cross-examination article, I knew facts about the subject case that the litigants seemed unwilling to agitate. My view was that those facts could have a significant impact on the outcome of the case, if the Court were minded to take a particular view of them. That was not the only view that was open on those facts.

The rigours of the court room experience are alien to most clients. Their narrative and attitude is informed by their education and experience. They tend to proffer an approach based on that education and experience. However that is not always the best way to achieve the outcome they say they wish to achieve or that may be in their best interests.

A good advocate will not only endeavour to learn how a Court may rule on a particular issue, but also how to persuade a Court to arrive at such a decision. Evidence and advocacy style are relevant considerations in that regard.

As the particular case develops the lawyer must ensure that they comply with all their professional obligations. New developments and information can require a review of the position one is obliged to take in respect of the case.

Experience in Court and in life can educate a lawyer as to what they feel may be in the best interests of the children. That view may conflict with the instructions of the client. The client may wish to prosecute a case that the lawyer feels is not in the best interests of the children.

It is difficult to arrive at an informed conclusion as to what may be in the best interests of the child unless and until all the relevant facts and circumstances of the case have been considered.

The attitude of the client can constrain the disclosure of information and material. The client may determine for their own purposes what they reveal in conference with their lawyers. That may be a poorly informed decision on their part, because it may preclude relevant information from becoming part of the litigation. Something the client considers bad may not necessarily turn out that way in the final analysis.

Managing Ideological Clashes
Difficulties can arise when the ideologies of the client and the lawyers clash. Managing those clashes is critical.

I knew the wife was a skilled manipulator, yet she denied such an allegation to me. During discussions involving the matter she inadvertently admitted to trying to manipulate the proceedings to prevent disclosure of something she considered awkward for her. That admission would support the allegation that she was a manipulator. There was good evidence to support the inference that she had other awkward evidence she was trying to hide. Apparently the husband was unaware of this awkward evidence.

As I dealt more with the wife, it occurred to me she was dishonest and her dishonesty had the potential to seriously impact the proceedings. I will not be party to misleading the Court. I make that very clear to anyone who wishes me to do so.

I once had a bankruptcy client for whom I could ultimately make no positive submissions. I made him aware of my position, but he wished to persist with his case. I told him I could no longer act for him. I made the same decision in a child protection case when the father was kind enough to threaten me with physical violence in front of a witness seemingly sympathetic to his case.

The manipulative, dishonest wife had not reached that stage, but there were warning signs that this could be a difficult situation. Some of her behaviour could be said to be damaging to her case and by persisting with it, she was doing herself no favours. Ultimately it was her decision not to heed advice. It could even be argued that the mother was manifesting self-destructive behaviour and that she would be a danger to the children, if it continued and escalated.

The possible self-destructive behaviour of the mother was an issue worth agitating before the Court. Was it in the best interests of the children to be placed primarily in the care of such a parent? It appeared that circumstances were conspiring to prevent the agitation of that issue.

The case posed another question for me: Did the duty to the Court in our adversarial system extend to requiring that material be placed before the Court to agitate that issue, so that it could be considered in determining what was in the best interests of the children? 1 2

Professionally I resolved the question conservatively and considered that my duty did not extend that far. Privately I may hold a different view. More generally that particular issue is a long way from resolved and is worthy of considerably more debate. However that was for another time.

A Court hearing in the matter will bring these issues closer to the surface. Until that happens, the parties have freedom to reach an agreement between themselves. That may also resolve some of the difficulties presenting themselves to me in the case.

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