Considering vulnerable parties in family law matters

• by David Frenkel

Originally published at The Lawyer’s Daily

Considering vulnerable parties in family law matters

Clients who go through the process of divorce usually relay a nerve-racking experience from the time they enter their lawyer’s office to the moment their legal issues are settled.

On the outside, their uncertainties include diminishing finances, unknown future living conditions and new challenges in raising a family in separate households. On the inside, they have lots of self-doubt and overwhelming fear that is exacerbated by stressful litigation.

As family lawyers, we see many strong individuals openly weep in our offices. They share with us their confessions of failure, regret and vulnerability. We guide them, console them and try to provide tailored legal strategies.

But sometimes, we are tempted to step outside the moral comfort zone. Sometimes, our own clients demand unreasonable results at the expense of the opposing party.

In those circumstances, that initial deviation from a moral overall good can result in directly or indirectly taking advantage of another individual.

Those situations result when our clients ask us to take on an extreme legal position against a vulnerable spouse where the facts of the case clearly do not warrant it.

Our clients may encourage behaviour that border on our abuse of power if we are the ones representing the financially more well-off client. In those situations, we have a duty as officers of the court to not just follow the instructions of our clients but also to administer justice to society as a whole.

If we do not consider the overall justice, we may knowingly perpetuate a situation where we permit our client’s unfair legal position to abuse the opposing party’s vulnerability. Consequently, there should be limits when fighting for one’s own client, and there is a moral obligation to push back when our own client may demand to financially suffocate their ex-spouse.

We should thus be careful when giving legal advice, especially when there is clearly a vulnerability on the other side. Some examples of vulnerability include an unemployed single parent trying to make ends meet; a financially dependent spouse not having the resources to go to court; or a spouse with circumstantial and/or temporary mental health challenges. There are other examples, but the common thread to watch out for is vulnerability.

As lawyers, we need to assess not only the circumstances of our own client but also objectively review the situations of both parties as a whole.

If the litigation strategy we embark on will likely cause harm to the opposing party, perhaps we should pause and reassess our advised strategy. Perhaps we should take a step back from the instructions of our client and take a look at the potential carnage that we will cause and measure the potential damage that will result.

For example, we should reconsider a situation where our client will pay spousal support far below the Spousal Support Advisory Guidelines and the opposing party is vulnerable and needs all the money they can get. Similarly, we should take a second look at a strategy that uses the backlog of the court system to relieve our client in paying child or spousal support when we know it would cause hardship to the other side.

And it is also not kosher when we improperly deflate our client’s income in a preliminary calculation for valuation purposes although “technically” the support is within the Guidelines.

Our actions as family lawyers can have severe ramifications for vulnerable spouses for years to come. Our abuse of advocacy can inflict actual harm on those who need to be protected and supported.

Instead, let us use our legal knowledge and skill for the overall good and not for suffering. Let us not overly focus on the billable hours we will profit from when that money from our client could have better been used to provide more support to those who need it.

Let us advocate for more equity to a spouse who needs it to purchase a home if it is within the legal parameters of doing so.

Sometimes it is easy to get caught up in the excitement of winning legal motions and trials. There is obviously a feeling of personal satisfaction as a lawyer when we win.

But in that moment of excitement as gladiators in a court battle, maybe we should pause and reflect on the possible resulting harm.

Maybe we should consider the bigger picture instead of the impending victory. What will the overall outcome be? Will the successful motion achieve a greater good for society or just save money for our client at the expense of a vulnerable spouse?

Will the pat on the back from our colleagues in our attempt to make partner counterbalance the suffering that the opposing party will endure as a result of our win?

After we retire as family lawyers, will we be able to look back and remember the times our actions achieved an overall good in the world? Will we be able to say that we did everything in our power to not only achieve justice but also to prevent injustice?

Each legal step we take today will have ripple effects for not only the opposing party tomorrow but for many more years to come.

We can and should do better — one family law client and one family law issue at a time.