Deanne Sowter

Dissertation Title

Towards a Modified Conception of the Family Lawyer

Dissertation Topic

The prevailing understanding of the lawyer’s role fails to capture the realities of family law. The current model does not respond effectively to non-adversarial advocacy, family violence, and issues involving a client’s child. My dissertation explains the impacts of those inadequacies for clients and offers a different theoretical model of lawyering, examining the central question: what ought to be the role of the family lawyer? To understand the family lawyer’s role, I propose that three features of family law need to be considered. The first is non-adversarial advocacy, meaning the advocacy engaged to negotiate a consensual resolution. The adversary system supports the lawyer’s role, but it creates problems for preserving ongoing relationships, for recognizing and responding to non-legal interests, and it is manipulatable for those with greater power. Non-adversarial advocacy is often more appropriate for family law; however consensual resolutions are complicated, there are fewer safeguards, and they are vulnerable to reinforcing power imbalances and gendered hierarchies. This leads to the second feature which is family violence. The end of an intimate relationship is the highest period of risk for survivors. Women are more often victims of family violence and may suffer ongoing trauma, financial disadvantage, and further oppression, complicating the capacity of patriarchal structures to respond effectively. Third, children are the subject of the most hostile family law matters and they are negatively impacted by family conflict. The current model suggests the lawful impact of a client’s actions on third parties, a “custody battle”, are irrelevant to the lawyer’s role. My aim is to explain these problems and challenge modified positivist legal ethics theories that defend the current model by employing a “family law” lens that is informed by feminist legal theory and supported by Supreme Court of Canada family law jurisprudence.

Education

2019: LLM - University of Toronto, Faculty of Law

2013: JD - Osgoode Hall Law School

2002: MFA - American Film Institute

2000: BFA - York University

Teaching Experience

Adjunct Professor, Negotiations - University of Calgary, Faculty of Law (2020-22)

Adjunct Professor, Family Law - Western Law (2020-21)

Instructor, Negotiations - University of Calgary, Faculty of Law (2017-19)

Instructor, Ethical Lawyering - University of Calgary, Faculty of Law (2017-19)

Instructor, Advanced Family Law - University of Calgary, Faculty of Law (2018-19)

Instructor, Family Law - University of Calgary, Faculty of Law (2018-19)

Instructor, Entertainment Law - University of Calgary, Faculty of Law (2017-18)

Instructor, Legislation - University of Calgary, Faculty of Law (2017-18)

Professional Experience

Instructor, University of Calgary, Faculty of Law (2017-19)

Barrister and Solicitor, Birenbaum Steinberg Landau Savin and Colraine (2014-17)

Articling Student and Summer Student, Fasken Martineau DuMoulin LLP (2011-13)

Research Assistant, Professor Mary Jane Mossman - Osgoode Hall Law School (2012-13)

Awards
  • Research Fellowship, Winkler Institute for Dispute Resolution, Osgoode Hall Law School (2015-Present)
  • Newton W. Rowell Graduate Scholarship (2021-22)
  • Ontario Graduate Scholarship (2021-22)
  • CALE/ACEJ Best Paper Award (2021)
  • Honourable Willard Z. Estey Teaching Fellowship, Osgoode Hall Law School (2020-22)
  • Harry W. Arthurs Fellowship, Osgoode Hall Law School (2020-21)
  • York Graduate Scholarship (2020)
  • OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies (2019-20)
  • SSHRC - Joseph Armand Bombardier Canada Graduate Scholarship - Master's (2019-20)
  • OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies (2015-16)
  • Albert Weisbrot QC Prize (2012)
  • Goodmans LLP Award (2011)
  • Charles Edward Woodrow Award (2010)
Publications
Peer-Reviewed Publications
  • “Ethical Discretion: The Complexities for a Lawyer Reporting a Child in Need of Protection” (2021) Can Bar Rev (forthcoming) (22 pages).
  • “The Future Harm Exception: Coercive Control as Serious Psychological Harm and the Challenge for Lawyers’ Ethics” (2021) 44:2 Dal LJ (forthcoming) (33 pages).
  • “Full Disclosure: Family Violence and Legal Ethics” (2020) 53:1 UBC L Rev 141-178.
  • “Increasing the Emphasis on Family Law Lawyering: Correspondent’s Report from Canada” (2018) 21:2 Leg Ethics 163-166.
  • “Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code” (2018) 35 Windsor Y B Access Just 401-432.
  • “Professionalism & Ethics in Family Law: The Other 90%” (2016) 6.1 Journal of Arbitration and Mediation 167-218.
Book Chapters and E-Books
  • Deanne Sowter on Legal Ethics: Selected Slaw Columns from 2019-2020 (CanLii E-Book, 2021) (46 pages).
  • “Discussing Litigation Interests and Risks with Family Law Clients” in Michaela Keet, Heather Heavin, and John Lande, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions (Chicago: American Bar Association, 2020) at Appendix B (5 pages).
  • “Ethical Advocacy in Multi-Party Mediation” in Martha Simmons, In Search of Resolution: Complex Issues in Mediation Advocacy (Toronto: Thomson Reuters, 2018) (Pages 193-216).
Reports and Other Non-Peer Reviewed Publications
  • “Reframing Advocacy in Collaborative Practice” (2020) 19:1 Collaborative Review 7-12.
  • “Professionalism & Ethics in Family Law: The Other 90%” Overview Report – Winkler Institute for Dispute Resolution (2017) (20 pages).
Blog Posts
  • “Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases” (co-written with Jennifer Koshan) Slaw (20 December 2021); cross-posted to ABlawg the same day.
  • “If It Wasn’t Required Before, It Is Now: All Family Lawyers Must Screen for Family Violence” Slaw (2 November 2021).
  • “Bullying the Green” Slaw (31 August 2021).
  • “Legislating a Family Law Culture Shift” Slaw (29 June 2021).
  • “You Jump, I Jump: The Perils of Over-Identifying with a Client” Slaw (29 April 2021).
  • “Looking at Legal Ethics Through the Lens of Family Violence” Slaw (2 March 2021).
  • “Is it Time to Regulate Collaborative Practice?” Slaw (6 January 2021).
  • “Is it Time to Regulate Collaborative Practice?” Slaw (6 January 2021).
  • “The Myth of the Honest Negotiator” Slaw (29 October 2020).
  • “Mediation: A Warning Not to Bully a Client into Settlement” Slaw (19 September 2020); cross-posted to ABlawg (21 September 2020).
  • “10 Legal Writing Tips for Law Students” (co-written with Trevor Farrow) Slaw (9 September 2020).
  • “A Family Lawyer’s Role is (Not) to Minimize Conflict” Slaw (25 June 2020); cross-posted to Ablawg (29 June 2020). **Partially Reproduced: Mary Jo-Maur, Nicholas Bala, Claire Houston, Family Law: Text, Cases, Materials and Notes, 10th ed (Toronto, ON: Thomson Reuters, 2021).
  • “What is Non-Adversarial Advocacy?” Slaw (24 April 2020); cross-posted to Ablawg (27 April 2020).
  • “A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection” Slaw (26 February 2020); cross-posted to ABlawg (28 February 2020).
  • “Coercive Control: What Should a Good Lawyer Do?” Slaw (December 27, 2019); cross-posted to ABlawg (January 2, 2020).
  • “Lawyer (In)competence and Family Violence” ABlawg (March 20, 2019).
  • “Can we Reframe the Family Law Reform Conversation, Please?” Justice Innovation Blog – Winkler Institute for Dispute Resolution (November 2017).
  • “Collaborative Practice Pro Bono Project Launches” Justice Innovation Blog – Winkler Institute for Dispute Resolution (May 30, 2017).
  • “Family Law ADR Requires a Higher Ethical Standard, Part II” Justice Innovation Blog - Winkler Institute for Dispute Resolution (June 20, 2016).
  • “Family Law Requires a Higher Ethical Standard” Justice Innovation Blog – Winkler Institute for Dispute Resolution (May 24, 2016).
  • “Professionalism & Ethics in Family Law: The Other 90%, Part II – What Does It Mean to Be Ethical in An Innovative Process?” Justice Innovation Blog – Winkler Institute for Dispute Resolution (February 7, 2016).
  • “Professionalism & Ethics in Family Law: The Other 90%” Justice Innovation Blog – Winkler Institute for Dispute Resolution (November 11, 2015).
Presentation
  • Collaborative Practice and Family Violence – Lawyers’ Ethical Obligations” (Domestic Violence in Collaborative Practice Conference, Association of Collaborative Practice – Calgary, Virtual, October 2021)
  • Collaborative Practice and Legal Ethics – The Challenge of Family Violence and Disclosure of Information” (Workshop at Ontario Collaborative Law Federation and Ontario Association for Family Mediation Joint Conference, Ottawa, Ontario, May 2019)
  • “Spousal Support 101” (Presentation to newly appointed Provincial Court and Court of Queen’s Bench Judges, Judicial Education Seminar, Calgary, Alberta, March 2019)
  • “Family Law Process Options: Negotiation, Mediation, Collaborative or Litigation – What are they and which one is the “right” option?” (Saturday Morning at the Law School presentation, University of Calgary - Faculty of Law, Calgary, Alberta, September 2018)
  • “Ethical Disclosure in Collaborative Practice: The Trust Factor” (presentation to Collaborative Practice Toronto members, Toronto, Ontario, June 2018)
  • “Legal Services Regulation and Disruption” (Panelist at the CBA-FLSC Ethics Forum, Toronto, Ontario, March 2018)
  • “Ethics in 6 Minutes” (Panelist - “The 6 Minute Settlement Practitioner”, at the OCLF & OAFM Conference: Collaborative Practice & Mediation – The Power of Interest Based Negotiation, Niagara, Ontario, September 2017)
  • “Ethics and Professionalism in Family Law ADR” (2 x 90 minute workshops, at the OCLF & OAFM Conference: Collaborative Practice & Mediation – The Power of Interest Based Negotiation, Niagara, Ontario, September 2017)
  • “Ethics in Family Law ADR” (presentation at the Peel Halton Collaborative Retreat, November 2016)
  • “Ethics and Professionalism in Collaborative Law” (presentation to the Peel Halton Collaborative Practice Group, May 2016)
  • “Intentional (and Otherwise) Experiments in Ungrading” (co-presented with Nayha Acharya, Adrien Habermacher, Anna Lund, Nickie Nikolaou, Lisa Silver, Katie Sykes, and David Wiseman at 2021 Canadian Association of Law Teachers Conference, June 2021)
  • “The Bounds of Legality for Family Lawyers: Is the Law Enough?” (Paper presentation at Canadian Association of Legal Ethics Conference, University of Windsor – Faculty of Law, Windsor, Ontario, October 2019)
  • “Collaborative Family Law and Legal Ethics: The Challenge of Domestic Violence and Disclosure of Information” (Paper presentation at the Osgoode Mediation Clinic’s 10th Anniversary Symposium on Dispute Resolution, hosted by the Winkler Institute for Dispute Resolution, Osgoode Hall Law School, Toronto, February 2019)
  • “Addressing Academic Misconduct” (co-presented with Alice Woolley at Canadian Association of Legal Ethics Conference, Osgoode Hall Law School, Toronto, October 2018)
  • “Out of our Comfort Zone: Difficult Conversations and their Potential to Create Ethical Lawyers” (Presentation at ACCLE-CALT Joint Conference: The Whole Lawyer 2.0, Queen’s University, Kingston, Ontario, June 2018)
  • “Expanding the Pie: An Intensive and Progressive Approach to Mandatory Negotiations Curriculum” (co-presented with David Wright at ACCLE-CALT Joint Conference: The Whole Lawyer 2.0, Queen’s University, Kingston, Ontario, June 2018)
  • “Ethical Disclosure in Collaborative Practice: The Trust Factor” (Presentation at Canadian Association of Legal Ethics Conference, Dalhousie University, Halifax, October 2017)
  • “Professionalism & Ethics in Family Law: The Other 90%” (paper presentation at Canadian Association of Legal Ethics Conference, University of Alberta – Faculty of Law, Edmonton, October 2016)
  • “Professionalism & Ethics in Family Law: The Other 90%” (paper presentation at International Legal Ethics Conference VII, Fordham University, NYC, USA, July 2016)
  • “Legal Ethics and Family Law” (guest lecture in Professor Amy Salyzyn’s class at the University of Ottawa, Faculty of Law, April 2021)
  • “Legal Ethics and Family Law” (guest lecture in Professor Pooja Parmar’s class at the University of Victoria, Faculty of Law, March 2021)
  • “Collaborative Law overview and skills class” (3-hour guest lecture in Professor Sandhya Kohli’s Mediation class at Osgoode Hall Law School, March 2017).