The best interests of the child add an important element to ethical conduct in family law. Privilege, confidentiality and conflicts of interest require consideration over and above that which must be applied in other areas of the law. In particular, it is suggested that there is a duty to the child which must take priority over the duty to one’s own client in some circumstances.
Introduction
Our values are at the heart of ethical conduct. That is nowhere more important than in family law practice. Each of us must form our own views of the way in which we should conduct ourselves in practice. We must understand and apply standards relating to issues inherent in the practice of family law. Family violence, abuse of children including physical punishment and inappropriate parenting practices are amongst the most significant. Importantly, our own conduct must be commensurate with the highest of those standards. We must understand and accept that while each of us may have a different approach to any given issue, we need to apply some fundamentals on which to base our views.
All legal practitioners are bound by ethical rules in professional practice. Those rules are to be found in statute, subordinate legislation and the common law. They include issues of duties to the Court, the fiduciary duty to the client, and duties to others including opponents and the community. Those duties come into conflict at times. The requirements of lawyers’ ethics and professional responsibilities assist us in resolving those conflicts.
This article discusses some of those fundamentals and suggests ways in which they might be applied. They are matters of which we must be constantly aware in every day conduct.
Family Law is Different
The litigation decision making process involves first, the determination of the relevant facts, secondly the identification of the relevant law and finally, the application of the facts to the law, thereby deriving a decision. Family law has an added consideration. As part of the final step, the Court must exercise its discretion by deciding, in child cases, what is in the best interests of the child? That is the point at which value judgments are made. Those value judgments often raise exquisitely difficult issues. How do you evaluate family violence? Is any violence acceptable? What is the consequence of abuse of the child? Is a perpetrator of violence an acceptable role model for the child, no matter what the degree of violence? How does physical or mental disability impact on parenting and the child’s best interests? How does the bonding of the child with each of the parties impact on the child’s best interests?
There is very rarely only one correct answer to these questions and the ultimate determination. They challenge us in ways which are unique in the law.
Confidentiality and Legal Professional Privilege
Legal professional privilege has been a common law concept in Australia but has now been incorporated into legislation.2 It defines disclosure of confidential information given to the lawyer for the dominant purpose of seeking advice and conducting litigation.3 The essence of privilege is that it relates to the compellability of the evidence while confidentiality does not have that restriction. Privilege is a part of the wider concept of confidentiality. While all privileged information is confidential, not all confidential information is privileged. Unlike privilege, confidential information is compellable.
The duty of confidentiality arises from the fiduciary relationship between lawyer and client established by the retainer or contract to act. It is the only element of that relationship which survives the termination of the retainer.4 The best approach to the duty is to regard everything which has passed between lawyer and client as being confidential. In discussing any aspect of a case with someone who is not connected with it should be on a totally anonymous basis, if at all.
The duty of confidentiality is the foundation of conflicts of interests discussed below. However, it is also extremely important in a most practical sense. For example, disclosing that you are acting for someone will usually be a breach of confidentiality. That is particularly so if you are known to practise in family law. In that instance, what you are really saying is that your client is experiencing relationship breakdown which constitutes an egregious breach of ethical conduct and could lead to disciplinary proceedings.
Conflicts of Interests
There are two categories of conflicts of interests relevant to legal practice. The first of those is conflict between the lawyer and the client. There are a myriad of ways in which such conflict might arise. They stem from the lawyer permitting the relationship to move away from the narrow imperative of acting in the best interests of the client. Often a breach will stem from a power imbalance between solicitor and client. For example, allowing the relationship to become personal and even romantic is unacceptable conduct on the part of the lawyer. It is extremely dangerous to enter into a business relationship including investing in the other’s business or lending dealings.
Costs is another important area in which a lawyer may be in conflict with the client. Recent amendments to the law of the Australian States of Victoria and New South Wales have introduced wide reaching disclosure and enforcement provisions.5 The legislation has removed most of the scope for disputes. If a lawyer does not make full disclosure, provide for retainer agreements to contain specific terms and ensure that the client understands every provision, a costs agreement can be declared void by a Court or tribunal and the lawyer is at a high risk of facing disciplinary proceedings.6
The second area of conflicts of interests is as between two or more clients of the lawyer. Conflict between current clients is known as concurrent conflict and between a previous client and a current client successive conflict.7 However, there are circumstances in which the client wants the lawyer to act despite a potential conflict. Accordingly, it is necessary to examine the test which is applied in determining whether the lawyer may act.
The essence of the determination of a conflict is the risk, if any, of the disclosure of confidential information. The test in civil law is to require there to be:
… a real, as opposed to a theoretical possibility that confidential information given to the solicitor by the former client might be used by the solicitor to advance the interests of a new client to the detriment of the old client.8
That test is to be contrasted with the test which has applied in family law proceedings in Australia until quite recently. Courts exercising jurisdiction in family law have relied on a less stringent standard of “theoretical risk”.9
Regrettably, the Full Court of the Family Court of Australia has changed that test from theoretical risk to real risk.10 It is respectfully suggested that this change to the test is a retrograde step. The real risk test requires that an applicant for an injunction to restrain the lawyer from acting must to establish both the existence of relevant confidential information and a real risk of its disclosure. By contrast the lower threshold of theoretical risk only requires the applicant to establish the existence of relevant confidential information. Once the theoretical risk is established the Court is more inclined to infer an unacceptable risk of disclosure. That inference is consistent with applying a strict regime of protection of a client’s confidentiality. In the context of family law with the frequent emotional overlays of the breakdown of the relationship and the consequences on children and finances, the Courts should apply a high degree of caution in allowing practitioners to continue to act in a conflicted situation. That constitutes a more principled, and therefore more ethical, approach.
There is another element of conflicts of interests relevant to this discussion which is often overlooked. Part of the confidential information is what a lawyer learns about the personality and idiosyncrasies of the client. They have been referred to as the getting to know you factors.11 They must not be ignored in considering conflicts of interest.
A conflict of interests can be overcome by the affected clients giving informed consent. For some inexplicable reason, the Australian rules require that consent to be in writing in successive conflict but not in concurrent conflict. The vital element is that the consent must be informed. Informed consent may only be given if it is based on a full and frank disclosure of all relevant matters.
Several practical difficulties arise in everyday practice which suggest lawyers should exercise extreme caution where there is potential for conflict. Making the required full and frank disclosure would normally involve the lawyer disclosing the identity of the former or current client. As discussed above, that will usually be an ethical breach. Further, the conflicted lawyer will usually be unable to give the degree of independent advice necessary to enable the client to consider giving informed consent. Sending the client to another solicitor for that advice is quite unrealistic.
Ultimately, acting in a conflicted situation raises major ethical issues for lawyers. It is suggested that there is an unwritten rule in such situations: If in doubt, get out.
Dealing with Self-Represented Litigants
In the year to 30 June 2015, one or more litigants represented themselves in 37 per cent of cases in the Family Court of Australia.12 The picture is the same in common law Family Courts throughout the world. There are consequential ethical demands on lawyers to act appropriately towards self-represented litigants. Lawyers must treat such litigants with respect and dignity while ensuring that they always act in the best interests of their own client.
The issue is the subject of Rules in some jurisdictions. For example, Singapore’s Professional Conduct Rules provide:
8(2) A legal practitioner (A), when dealing on behalf of his or her client with any person who is not represented by another legal practitioner —
(a) must decline to give to the person any legal advice (other than advice to obtain independent legal advice), if A knows or ought reasonably to know that the interests of the person are adverse, or potentially adverse, to the interests of A’s client; and
(b) must take reasonable steps to ensure that the person is not under the impression that the person’s interests are protected by A.13
In Australia, barristers in Victoria and New South Wales are bound by the following:
A barrister must not confer with or deal directly with any party who is unrepresented unless the party has signified willingness to that course.14
Lawyers who have acted against self-represented litigants know the difficulties which often arise. As well as ensuring that no legal advice is given, there is the ever present risk of being misquoted, particularly in Court. The problem is exacerbated by negotiating with a self-represented litigant outside the Court and then having to cross-examine him or her in Court. The self-represented litigant cannot be expected to understand the concept of the privilege which attaches to bona fide negotiations and will often breach the law in that respect.
However, in a practical sense lawyers are often in a situation in which they have no choice but to deal with a self-represented litigant. It is unrealistic to ban all contact, particularly with regard to negotiating settlement of the proceedings. Much depends on whether the litigant takes a reasonable approach to such dealings. If belligerent, only written communications must be considered. If willing to participate in negotiations, consider having a third person present to take notes. A lawyer who must cross-examine the self-represented litigant if negotiations fail to settle should avoid being involved in discussions if at all possible. In any event, there should be an exchange of a written record of any discussion as soon as possible after the event.
Duty to the Child in Family Law Proceedings
Lawyers pledge to obey the law on admission to practice. Every lawyer becomes an officer of the Court which, in turn, imposes certain duties which are fundamental to the rule of law. The first of those duties is to the Court. Clients are often unable to understand that that duty applies ahead of the lawyer’s duty to the client. In a case of the lawyer’s duty to the Court being in conflict with his or her duty to the client, the duty to the Court takes priority.15
In addition to the issue of discretion discussed above, there is an element of family law proceedings which makes them unique. Family law litigation, primarily in its child jurisdiction but also in property proceedings, concerns a child who is not strictly a party to those proceedings. Of course, the role of a lawyer for the child is different to that of the lawyers for the parties. The Court’s jurisdiction requires it to be satisfied as to what is in the best interests of that non-party, the child.16 That raises the question of what, if any, further duty is owed to the child? Is there a duty, owed by the lawyers for the parties to the Court, which also takes priority over the duty to the client?
The question has been the subject of judicial consideration on several occasions. In Clarkson v Clarkson, in reference to family law proceedings, Selby J held:
[T]he interests of the parties take second place. Regard for the interests of the child is the determining factor. … Recognised tactics of advocacy which may be in every way right and proper are not necessarily of assistance in cases of this nature. … The task of counsel is a difficult one for, while owing a duty to his client … he must always remain aware that the child’s interests come before those of his client.17 (emphasis added)
The High Court of Australia considered the issue in the context of the legal professional privilege attaching to a lawyer’s knowledge of the whereabouts of a child who was the subject of litigation. Gibbs J held:
These cases support the view that where one party to matrimonial proceedings has failed to comply with an order giving custody of a child to another party, and has taken the child into hiding, the public interest in securing the welfare of the child, and in ensuring that an order made for securing that welfare is not deliberately flouted, prevails over the competing public interest that confidential communications between solicitor and client should be protected from disclosure in order that members of the public may be free to seek that legal advice without which justice cannot properly be administered. That, in my opinion, is the correct view. The privilege, which arises only because the public interest requires it, does not exist when it is seen that it would be contrary to a higher public interest to give effect to it.18 (emphasis added)
In another case, both parties were represented by counsel in family law proceedings. During negotiations to settle the matter the husband offered to permit the wife to retain the care of the child on condition that he had the benefit of a custody order which he could show to the Child Support Agency to avoid paying child support. The trial Judge admitted the evidence of the negotiation on that point and was upheld on appeal, despite the privilege which otherwise attached to the negotiations. The Full Court upheld the Judge’s decision on the basis that it was in the child’s interests that the evidence be admitted:
However, in a case such as the present where the statement which his Honour found had been made by the father, indicated that he was not genuinely seeking custody of the child but only a formal custodial position which he, wrongly, thought to be to his financial advantage, a refusal to admit that evidence would have a direct adverse effect on the welfare of the child. In our view his Honour did not err in admitting that evidence in the circumstances of this case.19
It is clear that in family law proceedings lawyers for the parties owe a duty to the child which, in some instances, takes priority over their duty to their own client. In all circumstances that duty includes conducting family law proceedings in a manner which does not unnecessarily inflame emotions which may be contrary to the child’s best interests.
Conclusion
The ever increasing complexities of the law and its practice make it impossible for any one lawyer to be expert across all fields of practice. That has brought about specialisation in particular jurisdictions and areas of practice. However, no matter what specialty a lawyer embarks upon, there is always one absolute. That is the need to specialise in ethical conduct in every aspect of being a lawyer. It underpins the community’s respect for the law and the Courts which in turn is the basis of the rule of law and access to justice. The rule of law is fundamental to the proper conduct of a democratic society.
► Professor The Honourable Nahum Mushin
Adjunct Professor of Law
Monash University
The Honourable Nahum Mushin is an Adjunct Professor of Law at Monash University where he teaches ethics. Prior to his appointment to that position, he was a Judge of the Family Court of Australia for 21 years and a Presidential Member of the Administrative Appeals Tribunal for six years. Professor Mushin chaired the Australian Government’s advisory committees on the apology to people affected by forced adoptions and implementation of measures to support them. He has been involved in multicultural issues and the law throughout his career.
Notes
1 This article considers its subject matter primarily from the perspective of practice in Australia.
2 Evidence Act 1995 (Cth) Part 3.10. The same legislation has been enacted in the States and Territories.
3 Ibid, ss 118 and 119.
4 Prince Jefri Bolkiah v KPMG (a firm) [1999] AC 222, at 235; but see also Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, at 521–522, per Brooking JA, as to whether a duty of loyalty might also survives the termination of the retainer.
5 O, Schedule 1, Part 4.3.
6 For other potential areas of lawyer/client conflict see Legal Profession Uniform Law Australian Solicitor Conduct Rules 2015, (ASCR) r 12.
7 Ibid, rr 11 and 10.
8 Carindale Country Club Estate Pty Ltd v Astill, (1993) 42 FCR 307, at 312 (per Drummond J).
9 Thevanez v Thevanez, (1986) FLC ¶91-748 (CCH Australian Family Law); McMillan v McMillan (2000) FLC ¶93-048.
10 Osferatu v Osferatu, (2015) FLC ¶93-666.
11 Yunghanns v Yunghanns, Supreme Court of Victoria, Gillard J, unreported, 3 July 1998.
12 Family Court of Australia Annual Report 2014–2015, Figure 3.21.
13 Legal Profession (Professional Conduct) Rules 2015, r 8(2).
14 Legal Profession Uniform Conduct (Barristers) Rules 2015, r 53.
15 DA Ipp, Lawyers’ Duty to the Court, (1998) 114 Law Quarterly Review 63.
16 Family Law Act 1975 (Aus), s 60CA; United Nations Convention on the Rights of the Child, Art 3(1).
17 Clarkson v Clarkson, (1972) FLR 112, at 114.
18 R v Bell; Ex parte Lees, (1990) 30 ALR 489, at 494.
19 Hutchings v Clarke, (1993) FLC ¶92-373, p 79,876 (CCH Australian Family Law). See also Evidence Act 1995 (op cit), s 131(2)(g).