Full Disclosure: Family Violence and Legal Ethics

UBC Law Review, Forthcoming

29 Pages Posted: 9 Oct 2019

See all articles by Deanne Sowter

Deanne Sowter

The Winkler Institute for Dispute Resolution; University of Toronto, Faculty of Law

Date Written: September 14, 2019

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

Suggested Citation

Sowter, Deanne, Full Disclosure: Family Violence and Legal Ethics (September 14, 2019). UBC Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3453850 or http://dx.doi.org/10.2139/ssrn.3453850

Deanne Sowter (Contact Author)

The Winkler Institute for Dispute Resolution ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

University of Toronto, Faculty of Law ( email )

Toronto, Ontario M5S 3G8
Canada

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