Photo by Ian Britton, under a (cc) attribution, non-commercial, no derivs license

Photo by Ian Britton, under a (cc) attribution, non-commercial, no derivs 3.0 license

True story: a family lawyer in town got a call from his client.

The client said: “I shot the bitch. Right there on the street, like the dog that she was. So anyway, I’m just driving over to your place.”

The client was placed under arrest. That lawyer still practices, though I’ve been told that the wife’s lawyer no longer does. 

As those of you who have been reading my blog a while know, in my day job, I’m a freshly-hatched lawyer (called to the bar in June). Since then, I have been practicing in the area of family law, often to the exclusion of anything else, including blogging and writing fiction. It is a wrenching and exhausting area of law. Clients will often start crying during the course of a meeting while I listen, and feel a deep sadness at all that the client is losing, at so many levels. All our meeting rooms and offices have boxes of tissues.

Family law was near the bottom of my list of practice areas to work in, back when I was in law school (all of a year and a half ago). It ranked just above criminal law, which I still have no desire to work in.

But it turns out I absolutely love family law. This surprises many, including many fellow lawyers. Heck, it surprised me.

But yeah–I really love it, because I feel like what I am doing is making a difference. This week, a client who has not been able to see his kids since this past summer, because his ex and her lawyer were being difficult, finally got to see the kids. This result is a direct consequence of my actions and efforts (with oversight and mentorship from a senior lawyer, of course), and when something like this happens, after months of oft-discouraging effort, it can feel good.

But there’s a potential double edge to it all, and that’s something I’ve been struggling with, though for now that struggle is theoretical, thank goodness.

It’s the issue of conflicting ethics.

Here’s the thing. As a purported expert who has been trained and licensed in the practice of law, I have one of those pre-re-reboot Spiderman imperatives (paraphrased): “With some knowledge, expertise and power comes great responsibility.” As part of the oath we take when we are sworn in, we are bound by a set of ethics and codes of behaviour (though you might not know it, from the way some lawyers behave). We are duty-bound to:

  1. be a zealous advocate for our client and represent his or her interests to the best of our abilities, within the limits of the law,
  2. to work within the limits of the law and the system;
  3. to behave with civility and in a manner that does not bring the practice of law into disrepute.

Other aspects of this duty include the fact that at a systemic level, everyone has the right to representation–and so we as individual lawyers, are not supposed to turn people away (notwithstanding their ability to pay, as there is recognition that bills and salaries etc. have to be paid), and we are supposed to represent them to the best of our abilities. This was memorably conveyed when in first year law school, a prominent criminal lawyer in Toronto stated during one of our ethics sessions, that he would represent a Nazi/Anti-Semite/white supremacist if he were retained to do so, even though the lawyer was Jewish and his grandmother had died in a concentration camp.

And so this is the crux of it: the system requires that as a lawyer, you are sometimes supposed to represent people, and advocate positions that go against your own personal ethical standards. You end up having HAL-like, conflicting imperatives at the personal and professional levels. This kind of doublethink is expected.

And you have to justify it by telling yourself, “in my profession, my duty is to this other, alternate sense of ethics, and this idea that I must be zealous advocate for my client. The system is structured such that I must let the other side be argued by counsel for the other side, trusting to the fact that they will do so ably such that the judge can make a fair determination that is best for all.”

I haven’t been practicing long, but I have already seen a number of instances where that “system” falls short, such that the other side is not fairly heard, because counsel is inattentive, obstructive or motivated by factors that are not relevant to the case (e.g. making sure that they use up all the legal aid/government-funded hours they have been authorized for in the case of clients who cannot pay, thereby drawing out the dispute).

This bothers me because I keep imagining a scenario that is not unlikely to arise in my practice someday: I’m representing someone whom I strongly suspect is abusive. I have NO evidence. NO basis on which to allow my spidey senses to prevail and conclude there is abuse, even on a balance of probabilities. Nothing concrete that I’d be able to argue, if I were on the other side, in court.

But my spidey senses tend to look for subtle signs–the kind of things that might not even stand up if I were to try to explain them to a friend, leave alone to a boss or colleague to justify why I parted ways with a client. But I fear that the person is dangerous. That if he or she ended up having access to the children, or if he/she were to be permitted to share the matrimonial home with the ex, something bad could happen.

But I can’t prove it. Worse of course, is a scenario where I have actual knowledge of disturbing behaviours, but not of a sufficient magnitude, of themselves, that they would meet any kind of standard of proof, and I can’t disclose them anyway because of privilege.

And counsel for the other side is not competent, and does not argue the case credibly enough to persuade the court. The person gets access, or gets to stay in the matrimonial home with the ex. And something really bad happens. Because of me. Because the work I do makes a difference. Because I was doing my job, within the limits of law, and meeting my duties of competency and advocacy–and because that job required that I ignore my own personal ethics and instincts in favour of an alternate set of ethical imperatives.

Yeah. It bothers me, though it has yet to happen.

So back to the story I started with. When I first heard it, I wondered what it would be like if I had been that man’s lawyer. Would I have known he was capable of some violence, even if I could not have anticipated such an extremity of it, and would I have continued to represent him despite such knowledge? What about if it had just been a suspicion, rather than knowledge–one of those subtle, unprovable, spidey-sense things?

Worse–how would I deal with it, if I had somehow been instrumental in enabling him to get into that situation, in which he had the opportunity to murder his ex?

What if I’m advocating for a parent to have access to his or her child, and it turns out that the parent is abusive? I keep imagining the fear, panic and sinking feeling the child might experience upon learning that a court has ordered that he or she spend unsupervised time with that parent. It’s a horrible thought and makes me feel a little ill sometimes, even in the abstract.

Those are questions I ask myself, often. I don’t think I’m actually being a doomsayer or a pessimist. This stuff comes up, in family law.

I have no good answers. I don’t know how I’d deal with that, and I may not ever know, until the situation actually arises.

Working in a job that makes a difference means that you can make a difference for the worse, too. And that can be difficult to live with.

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