Like many areas of practice, family law is going through a period of change. Both clients and their lawyers are questioning traditional modes of practice. Economic woes both cause legal problems, and leave clients with limited resources with which to resolve them. Stress – for both families in crisis and for their lawyers – is a constant reality. Still, within this challenging climate, family lawyers are expected to work diligently and professionally in the service of their clients’ interests.
To understand how the bar is coping with the demands of modern family law practice, we invited a sampling of lawyers from across the province to answer the question “What keeps you up at night?”
Helene Desormeau and Christopher Giggey are partners in a Cornwall family law practice. Each identified self-represented family litigants as an issue of particular concern. Ms. Desormeau’s comments focus on access to justice, particularly for victims of family violence; Mr. Giggey talks about the challenges of representing a family law client where the opponent lacks representation.
I’m concerned when I encounter victims of domestic violence who earn under $19,000 annually or who are in receipt of public assistance, but who are refused traditional legal aid because the violence was “not serious enough.” I have also encountered people who have to go to court because they are afraid that the ex-partner will attend to kidnap the children, but who don’t qualify for legal aid because the ex-partner lives 200 kilometres away; or men or women forced to bring motions to vary support after a drastic change in financial circumstances (such as losing their employment) who must attend court without legal counsel. Although the situations described above are serious from my perspective, they do not qualify for legal aid.
I’ve served as family court duty counsel, and I’ve assisted in the local Family Law Information Centre. Also, I often accept clients funded under special domestic violence duty counsel certificates. These certificates – often issued by shelters – entitle the recipient to two hours of legal assistance. Two hours is usually not enough time to meaningfully help someone in dealing with the breakdown of the relationship, to provide advice about legal rights and possible remedies, or to assist these people in cutting through the cobwebs of the legal issues they face. In many cases, all I can do is draft pleadings for these clients so that they at least have a good first step into the family court world.
The bigger challenge
Duty counsel and advice lawyers from the Family Law Information Centre are generally extremely knowledgeable and exceptionally helpful and patient. However, they often lack the time to follow a matter through, especially when both sides tend to be self-represented.
And they cannot shelter victims of violence by sending correspondence on their behalf, or by ensuring that the aggressor does not have their personal contact information. When unrepresented, the victims of domestic violence may continue to be victimized by the aggressor by having to communicate directly with that person, often when they are at their weakest. Legal aid budgets and services continue to shrink; if this trend continues, the only people likely to have legal counsel in family court are those who earn substantially over $50,000 annually, and can afford to privately retain a lawyer
The ever-increasing proportion of self-represented litigants in family court means the proceedings often become protracted and more time intensive, due in part to the fact that the other side does not have the benefit of ongoing legal representation. This can translate into increased legal fees for represented clients, because additional time must often be spent in dealing directly with opponents who have a limited understanding of the law and of legal procedure.
In my initial correspondence to the self-represented litigant, I set out my obligations under rule 2.04(14) of the Rules of Professional Conduct. Notwithstanding this, I have found that the self-represented litigant will attempt to obtain direction – and sometimes legal advice – from me. As a result, it often becomes necessary to remind the other party of my role and my obligations throughout the proceeding.
Sometimes a self-represented opponent sends an unmanageable volume of email; when this happens, I have followed the suggestion of other lawyers, and have asked that all future correspondence be via mailed letter. I also take the time to explain to my client, at the outset of the retainer, that courts may provide a self-represented party with some leeway in presenting their case and complying with deadlines. Hopefully, this assists in managing their expectations down the road, when procedures are relaxed somewhat to account for a party being self-represented.
Advice for new lawyers
Establish contacts with more senior lawyers in your area of practice. Senior counsel are usually more than willing to pass on their knowledge and experience. There will come a time when you need to rely on this support network, and therefore, you should ensure that it is in place at the outset.
The full article can be found in the August 2012 issue of LAWPRO Magazine. All past LAWPRO Magazine articles can be found at www.lawpro.ca/magazinearchives