The Line between Advocacy and Maintaining Professionalism: Lessons for Family Lawyers and Clients

Written by: Simran Suvarna

A Recent Decision of Significance:

A recent disciplinary decision in the Queensland Civil and Administrative Tribunal serves as a reminder that advocacy should never come at the expense of professionalism, particularly in matters involving domestic and family violence.

A Queensland lawyer was publicly reprimanded after sending a 23-page letter to the other party in a matter on behalf of his client, who was bound by a domestic violence order that included a no contact condition. It was found that the correspondence went “well beyond what might legitimately be thought to be a communication about the child’s time with the client”. The tribunal held that the correspondence contained emotionally manipulative and coercive language when addressing the past relationship between the client and the aggrieved, emotional appeals for the aggrieved to reconcile with the client and cautions about the time and costs of litigation to deter the aggrieved from pursuing it.

The lawyer argued that the client had been pedantic and overbearing whilst the correspondence was being drafted, however the tribunal did not accept this as an appropriate defence. The tribunal found that “as the author of the letter, it was of course his sole responsibility to determine what was sent” and that “he had given into the pressure exerted on him by the client when she should have instead shown him the door.”

In deciding whether to categorise the offence as unsatisfactory professional conduct or professional misconduct, the tribunal found that the correspondence “ventured well beyond what was permissible, was sustained in its manipulation or coercion, exploited the vulnerability of its recipient and undermined the protections afforded by an order made under the DFVP Act”, and therefore constituted the latter, more serious offence of professional misconduct.

The lawyer was publicly reprimanded, ordered to pay a pecuniary penalty of $10,000 and ordered to pay the costs of, and incidental to, the application.

Why it Matters?

Family lawyers often work with clients that have either previously experienced or are presently experiencing prolonged conflict and trauma, resulting in overwhelming feelings of pain, disappointment, anger or regret. It can be tempting to include emotionally charged language that mirrors a client’s words either out of empathy, or for the purpose of appeasing overbearing clients. However, an important boundary must be established in such cases: lawyers are not mouthpieces for clients, and our paramount duty is to serve as officers of the Court.

Legal practitioners play an integral role in maintaining public confidence in the justice system, particularly in sensitive family law matters. They are expected to exercise their professional judgment and oblige with the overarching commitment to ethical practice in all correspondence. Aside from contradicting the practitioner’s advisory role, another significant issue with sending emotionally charged correspondence is that it evokes responses of a similar nature. This can then result in the ongoing communications between parties and their practitioners becoming hostile and uncooperative rather than practical and resolution focused, thereby confining families within the system for far longer than necessary. Hindering the efficient and amicable resolution of matters, especially in the Family Law space, is in direct violation of a practitioner’s commitment to ethical practice.

Key Takeaways:

Family Lawyers can and will represent their client’s interest to the greatest extent possible, however we cannot become mouthpieces for messages that the law intends to prevent. The setting of professional boundaries is not meant to be offensive, nor is it a weakness of the practitioner – it is in fact a safeguard for clients, vulnerable persons and the integrity of the profession.