Towards a Modified Conception of the Family Lawyer
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.