Full Disclosure: Family Violence and Legal Ethics

Abstract

Family violence creates ethical challenges for all family law lawyers, but it creates unique challenges for collaborative lawyers. Two of the tenets of collaborative practice are good faith and transparency. Two of the fundamental professional duties for lawyers are the duty of loyalty and the near-absolute obligation to keep client confidences. These ideas are at odds with each other, and the impact is problematic where there is family violence. This paper looks at the duties of loyalty and confidentiality, the contractual obligation in collaborative practice of full disclosure, and the presence of family violence. It looks specifically at the ethical challenges that arise when disclosing information pursuant to the collaborative practice participation agreement that create risk of harm for a spouse when there is family violence. Collaborative practice is still in its infancy in Canada, and without regulation, the options lawyers have when there are ethical challenges due to family violence are not conducive to meeting client interests, including promoting safety. Ultimately, this paper presents a solution in the form of collaborative practice legislation, amendments to the Model Code, and practice guidelines. The focus of the paper is collaborative practice, but some of this discussion is relevant to non-CP family lawyers as well, so where possible the recommendations are broad enough to include all family law lawyers.

Keywords: Legal Ethics, Collaborative Practice, Family Violence, Family Law, Dispute Resolution