Is your lawyer adhering to their ethical obligations?

 

It is common to hear people running down family lawyers. I admit do having done it myself on occasion.

However, many people forget that lawyers first and foremost acting on their client’s instruction. Often it is the same client complaining about the fee account who instructed the lawyer to chase the other side with endless streams of correspondence about irrelevant issues.

The vast majority of lawyers are hardworking, ethical and duty bound.

 

What are the ethical obligations of family lawyers in Australia?

Family lawyers are bound by ethical obligations to:

  • The court
  • Act in the best interests of the child
  • Act in the best interests of the client
  • Self-represented litigants
  • Opposing family lawyers
  • Avoid conflicts of interest.

 

Duty to the Court

Duty to the Court is a lawyer’s most important duty.

In the administration of justice, they must not:

  • Mislead or deceive the Court
  • Withhold relevant information from evidence to the Court
  • Exaggerate evidence or argument in favour of their client.

They must:

  • Comply with Court rules
  • Comply with pre-action procedures such as mediation
  • Provide ongoing disclosure to the other party
  • Provide costs disclosure
  • Make sure that any undertakings to the Court are upheld.

 

Duty to Act in the Best Interests of the Child

The primary consideration of the court in all parenting matters is to act in the child’s best interests.

A family lawyer’s duty to act in the best interests of the child surpasses their obligation to act in the interests of you, their client.

This means if a client suggested taking a course of action that is not in the child’s best interests, then the lawyer must advise their client against doing so.

A family lawyer must intervene to advise their client against behaviour that is not in the child’s best interests such as:

  • Discussing their family law matter with the child
  • Speaking badly about the other parent in front of the child
  • Relocation of the child without the other parent’s knowledge or consent.

It is a lawyer’s duty is to protect the child at all times, and this is particularly important in cases where violence and abuse are alleged.

 

Duty to Act in the Best Interests of you, the client

As their client, you come third regarding your lawyer’s obligations - after their duty to the court and any children involved in the matter.

In their duty to the client, lawyers must:

  • Maintain confidentiality
  • Communicate closely with clients
  • Be well prepared for all court events with documents drafted accurately, comprehensively and on time
  • Not prepare or endorse documents containing information that the lawyer is aware is incorrect
  • Present, explain and advise their client on all settlement offers;
  • Discourage their client from accepting settlement terms that are unjust and may lead to further disputes
  • Keep the client informed of the running costs and estimated future costs.

 

Duty to Self-represented Parties

Self-representation in family law cases is becoming increasingly common.

When dealing with self-represented parties, lawyers have a duty to:

  • Be courteous and prompt in their response to a self-represented litigants communication
  • Provide a self-represented party with legal and procedural information (not advice)
  • Make and accept any offers/counter offers of settlement in writing.

 

Duty to other Lawyers

Lawyers must remain professional and courteous to other lawyers.

 

Conflict of Interest

A lawyer in doubt as to whether they have a conflict of interest, should not represent the client.

 

This information in this article is general in nature and does not constitute specific legal advice.

If you require detailed information on ethics in family law, contact The Australian Law Council.

Published by Divorce Resource

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