February 10, 2021 by Robert Franklin, JD, Member, National Board of Directors
In Canada, the family law system is so fraught with conflict that even (some) lawyers are alarmed (Canadian Lawyer, 9/15/20). Attorney Geoff Carpenter raises some interesting points and makes some telling admissions, but nowhere does he admit the obvious.
Carpenter criticizes Canadian family lawyers for being too vexatious, too willing to exacerbate conflict, all for the purpose of lining their own pockets.
Handling high-conflict cases is an effective, and lucrative, business model. More conflict results in more letters exchanged, documents drafted, court appearances and hours billed. Lawyers simply make more money from high-conflict files than from amicable separations, and so there is a financial incentive for lawyers to engage in high conflict litigation.
Indeed. I’ve said the same thing more times than I can count. The family law system takes the natural conflicts between divorcing parents, makes them far worse and cashes the ensuing check. This results in some truly amazing legal bills in family law cases. Hundreds of thousands of dollars in legal fees are not unusual. One lawyer I know jokingly claimed he asked his clients “How much justice can you afford?” Often there seems to be a positive correlation between the size of a litigant’s bank account and the amount of conflict in the divorce proceedings.
Judges notice too.
Justice Marvin Kurz of Ontario’s Superior Court of Justice recently addressed the role of family law counsel in Alsawwah v. Afifi, 2020 ONSC 2883. In a motion for exclusive possession of the matrimonial home in the midst of COVID-19 the parties produced voluminous materials, much of which he characterized as “unnecessary, excessive, distracting and unhelpful.”
I’ve seen other judges be far blunter than that, but their words don’t alter behavior. Again, that should surprise no one. When we offer large cash incentives for particular behavior, we can’t pretend surprise when that behavior occurs.
So far, so good, but where Carpenter goes off the rails is in his apparent belief that changing the code of professional conduct for family lawyers would make any difference. It’s true that family lawyers have to deal with the sometimes competing requirements of (a) zealously representing the client (i.e. the parent) and (b) promoting the best interests of the child. To do (a) may mean ramping up conflict even though doing so may mean harming the child.
Of course prosecutors in criminal cases are required by ethical codes to temper their pursuit of a conviction by limiting the power they themselves wield, a fact Carpenter notes in passing. Like family lawyers, they sometimes face a conflict of interest. But of course no one should look to the behavior of prosecutors for a model of ethical behavior. If the Canons of Ethics for prosecutors were to control their behavior, we’d see a lot fewer wrongful convictions, coerced confessions, withheld exculpatory evidence, etc. than we do. The point being that those canons are a frail reed.
That’s made all the more clear when we notice that, in the U.S. at least, prosecutors are almost never disciplined even slightly by professional organizations for their ethical violations and they’re all but immune from civil suit liability. Carpenter nowhere produces evidence that bar associations in Canada are effective at disciplining members for abusing the judicial process. I suspect that’s because there isn’t any. Bar associations are well known for protecting all but the sleaziest, most blatant wrongdoers among their members.
But, what Carpenter calls the “elephant in the room,” isn’t. That “huge old beast” isn’t, as Carpenter claim, the tendency of lawyers to exacerbate conflict in order to jack up fees. It’s the absence of equal parenting legislation. Carpenter’s quite frank and accurate when he says that much of the conflict stems not from lawyers, but from clients.
If lawyers are willing they will always be able to find a client who is so emotionally hurt by their separation that they want to fight about every issue and raise every grievance that has arisen from the relationship. The problem is not that lawyers are driving the conflict; it is that lawyers are not stopping their clients’ emotions from driving it.
But he never stops to wonder why clients are so upset. Perhaps the main reason is the entirely justified fear on the part of parents of losing their children. Equal parenting legislation is invariably opposed by family lawyers. They routinely lobby against it, often not hesitating to violate their members rights to do so. Equal parenting laws unequivocally tell parents that, as long as they’re fit to do the job, divorce won’t mean the loss of a real, meaningful and full relationship with their children. Those parents march into their lawyer’s office secure in that knowledge and therefore far less likely to demand the “flame thrower” approach to the divorce process.
It’s a remarkable omission by Carpenter. He bemoans the problem of lawyers taking high conflict to the bank, but promotes a “solution” that’s been proven not to work and ignores a solution that would.