“The balance thing”: Family Court lawyers discuss the ethics of representing parents in Care of Children disputes

Introduction¹

“It’s a messy business, isn’t it?” (Family Court lawyer)

If I had to solve a problem, I’d spend 55 minutes thinking about the problem and five minutes thinking about the solution. — Attributed to Albert Einstein

Family lawyers are often blamed for exacerbating parental disputes over child-care and increasing the trauma for children through overly aggressive partisan advocacy. Consequently, several countries established Family Courts with the aim of moving from adversarial practice towards a conciliatory, settlement-focused approach. Aotearoa/New Zealand was one of them,² with legislators imposing on family lawyers the additional legal duty to encourage their clients to conciliate.³ Additionally, while not a duty per se, children’s interests were made the “first and paramount consideration” in any decision concerning them.⁴

While public, Parliamentary and even academic perception here is that Family Court lawyers (FCLs) are still too adversarial,⁵ research in the United Kingdom, the United States and Australia strongly suggests that their FCLs have responded to the call to de-escalate conflict and to put the wider family’s and children’s interests first. Researchers have even described FCLs as something of a holistically focused “hybrid profession”, more akin to mediators or social workers than traditional partisan lawyers advocating for the client alone.⁶

While some studies have identified problems with the new model, especially when lawyers encourage conciliation without recognising when it is contra-indicated, generally speaking researchers have seen the shift from a partisan to a more holistic perspective as a positive.

This article digs deeper into the implications of the holistic/hybrid model for FCLs’ professional ethics. It reports on a qualitative study of 16 Aotearoa/New Zealand FCLs discussing their ethical responsibilities when representing parents in childcare disputes. While this is only a small sample, and the findings cannot be generalised to the Family Bar, they do suggest a distinct culture of practice different to that of the legal profession overall. Because the study relies on self-report rather than observation, we cannot say whether respondents were less aggressive in actuality, but their views closely resemble the hybrid, holistic profession described in other studies internationally. However, even with the best of intentions, their responses also suggest that this model of practice puts considerable pressure on some significant legal ethical principles. We suggest that these challenges are both poorly understood and that they may be at the root of other problems other researchers have noticed.

Methodology

After obtaining ethics approval,⁷ we interviewed 16 FCLs across four regions, urban and regional. Interviewees were selected from the New Zealand Law Society website based on experience, excluding any with a recent or close working relationship with the first author (then in practice as a FCL in a different regional centre). Interviewees averaged 20 years’ FC experience. Eleven practiced, or had practiced, as Lawyer for Child (L4C). Almost all had legal experience outside of family law.

Semi-structured interviews, conducted by the first author, were digitally audio-recorded, transcribed and anonymised. Transcripts were then coded and analysed using Thematic Analysis, guided by descriptions by Braun and Clarke⁸ and Boyatzis.⁹ That analysis was then reviewed by a second member of the research team. Anything in quotation marks and block quotes in this article is taken from interviews unless otherwise specified.

Research literature review

There is a significant body of qualitative research on FCLs in the United Kingdom, Australia and United States. These studies have been remarkably consistent in their findings.

First, contrary to public perception, most FCLs have been found to be very conciliatory, focused on settlement rather than litigation,¹⁰ and highly motivated to protect their clients’ children,¹¹ to the point of actively advocating for the children’s interests with their clients.¹² Consequently, FCLs have been described as a “hybrid profession”; more neutral mediators striving to conciliate all parties to their mutual benefit (or the benefit of the children) than traditional partisan lawyers advocating for the client alone.¹³

Second, researchers observing FCLs’ work have noted that they provide a huge range of non-legal as well as legal advice, advising on parenting, relationships, emotional regulation and financial matters well beyond their legal training, and providing considerable practical support, such as referrals or form-filling, some describing them as crossing into social worker territory.¹⁴

Third, researchers have found FCLs to be highly effective negotiators who settle the overwhelming majority of cases, including those in which proceedings are issued.¹⁵ Although they can take longer, lawyers generally conclude more, and more durable, settlements than mediators.¹⁶ Researchers in the civil as well as the Family Courts suggest that even when lawyers begin proceedings, it is often tactical, aimed at forcing a recalcitrant party to engage in negotiation or to access court resources (such as settlement conferences or free counselling) for negotiation, a tactic researchers dub “litigotiation”.¹⁷

However, researchers have also sounded warnings about the consequences of curbing partisan lawyering in the Family Court.

First, researchers suggest that FCLs’ focus on what they consider the best outcome for all can undermine their support for the client.¹⁸ As Wright commented, most FCL support their client’s interests “up to a point perceived by the solicitor as objectively fair”.¹⁹

Several studies have found that some lawyers put considerable pressure on clients to accede to their advice as to what is best, at times to the point of coercion.²⁰ Pressure can extend to a refusal to act unless the client agrees to the lawyers’ proposals,²¹ and lying or exaggerating risks of non-settlement. Some studies have also raised concerns over lawyers’ covert collaborations with opposing counsel to manage their mutual clients into the lawyers’ jointly preferred outcome.²²

Particular concerns have been raised in Australia and England and Wales that lawyers’ pressure on women with violent ex-partners to settle and to share care may put their and their children’s safety at risk.²³ This risk has also been raised in Aotearoa/New Zealand.²⁴

Some of these researchers have suggested FCLs’ advocacy for unsafe settlements is due to ignorance of family violence dynamics and risks and an over-emphasis on shared care. Some suggest United States courts,²⁵ Australian lawyers²⁶ and English courts²⁷ still give credence to the long-debunked Parental Alienation Syndrome,²⁸ which suggests vengeful mothers are particularly likely to deliberately alienate children from fathers. This may suggest that some FC professionals still harbour longstanding myths about women and children as unreliable witnesses and false accusers.²⁹

Interestingly, some research in the criminal courts, regarded as the epitome of adversarial behaviour, has also found that in the pre-trial stages at least many defence lawyers are heavily focused on pressuring clients into resolving cases by pleading out.³⁰

In the criminal courts, one suggestion is that defence counsels’ allegiance is more to the smooth functioning of the system (and their own professional reputations for efficiency) than to the client, and some researchers have drawn similar conclusions about FCLs.³¹ Conversely, one of the most significant studies of English FCLs suggests it is the more engaged, client-focused lawyers who are more settlement-focused, while lawyers who are readier to take instructions at face value and litigate are less experienced or less engaged.³²

However, the previous research has not concentrated as much on the lawyers’ beliefs about their ethical responsibilities as a way of exploring and possibly explaining their practice. This study tries to fill that gap.

Findings: the special ethical character of Family Court lawyering

The overarching theme which emerged from the interviews was that FC lawyering is, as one put it, “a very specialised area of jurisprudence practice”, not just because of its subject matter but because of its different culture and ethical norms. As one put it:

Oh, now and again [a general practitioner] or, even worse, a criminal lawyer [will] wander in, but they usually wander back out because they get very confused very quickly. Our ways are different.

A majority were strongly of the opinion that lawyers from other disciplines, especially civil and criminal litigators, could not and should not try to practice in the FC because they “can’t under- stand” its special requirements, and when they try, they mis- judge things badly:

[Bad FCLs include] those great guys who we absolutely love, who come in from the criminal court because they’re running a bit short on work, or even worse, the commercial lawyers ... I know how they think, I know how they work and it doesn’t work in the Family Court.

What, then, does “work” in the Family Court, and how is Family Court lawyering different from conventional practice? Three interdependent themes emerged from the responses.

Empathetic but objective

The first theme was an intertwined emphasis on the need for, first, high levels of emotional insight or “empathy,” but only when coupled with, second, a strong “objectivity”.

“Empathy” was the most popular response to the question of what makes a “good” FCL, with almost all the lawyers listing this as a key quality or, as one described it, “the big difference” between family law and other areas of practice. Similarly, several also described bad FCLs as lacking “emotional intelligence”:

Family lawyers need to have higher degrees of empathy and people management because they’re dealing with raw emotion.

Simultaneously, however, almost as many interviewees coupled empathy with the need for “a sense of objectivity” or emotional distance from or scepticism about the client. Over half also went on to describe “bad” FCLs as those who lose their objectivity in their empathy:

[A bad FCL is] the lawyer [who] believes 100% that their client is an angel and ... isn’t solutions-focused: Who just gets bogged down in the process ... instead of thinking, how do we fix this?

Many emphasised the need for scepticism about the client’s version of events: FCLs need to remain aware that there is, said one, “[h]e said; she said and then there’s the truth”. While empathy is important:

[O]ne of [the key skills] is the ability to not get personally involved. ... [P]eople ... [make] it very difficult [when FCLs] ... believe everything their client tells them. They don’t appreciate that although [the client is not] lying to you, they have this perception of things which is not reflective of the actual situation. It makes it very difficult to try and reach a reason- able resolution because they’re so caught up with their client’s views and repeating their client’s views, they can’t give their client good advice.

The loss of objectivity was also seen as one of the main reasons lawyers became “over-aggressive”, the characteristic most associated with “bad” FCLs. Over-aggressive lawyers “become too emotionally involved in their clients and ... take it personally”:

A bad FC lawyer is one who is overly aggressive. ... [T]he big part in it is the making it personal. To the point where all you’re interested in is beating that other person rather than achieving a sensible solution.

Properly balanced, empathy enabled lawyers to intuit clients’ “real” needs, while objectivity enabled them to avoid being sucked into the clients’ (un)reality, and instead realise the most “sensible solution” overall.

Wider ethical commitments: children and conciliation

Closely related to the theme of the empathetic but objective FCL was a second theme in which FCLs must have a strong commitment to a wider set of ethical responsibilities beyond the normal duality of client and Court. These extra commitments provided the basis for the lawyer’s “objective” analysis:

[T]o be a good family lawyer you need to have a good dose of empathy and think about the family as a whole, and think about getting [them] through the process in one shake with mutual respect and have a long term focus and a bit more of an empathetic streak than a lawyer who just does the lawyering part of their job.

“Good” FCLs do not accept the clients’ instructions or views as to a “sensible solution” uncritically but must independently work out and work what they determine is the “reasonable resolution” for “the family as a whole”.

The two additional ethical responsibilities the lawyers acknowledged were, first, to encourage clients to conciliate (or to come to a compromise solution) and, second, to prioritise children’s interests. The former is explicitly set out in the initiating legislation for the New Zealand FC, whereas the latter appears in legislationas the paramount consideration for the Court’s decision-making, but not as a specific duty for parents’ lawyers.

Duty to conciliate

Almost all the lawyers emphasised the importance of managing clients to reach a “sensible” or “common sense” solution that defused tension and enabled good working relationships:

I expect [good FC lawyers] to do their damn-est to assist a family to come to a positive resolution for their children which ... they as adults can live with, that works really well with their kids and [to] keep as far away as a courtroom as they humanly possibly can. The last thing I will ever push anyone towards is a hearing.

While most still cautioned that “it’s not a case of ‘settle at any cost’”, conciliation was seen as usually in the clients’ best interests. As one put it, clients have:

two choices: they can try and put all this behind them and start a little bit afresh ... or they can spend the next three or four years in acrimonious, expensive, ultimately destructive litigation.

So deeply ingrained was this perception that, as one said, “I feel like I’ve failed if I go to court”:

[In] COCA, for example, a lawyer who wins 90% of their cases isn’t necessarily a good Family Court lawyer whereas a criminal lawyer who wins 90% of their cases is a [success].

Thus, as discussed above, when asked what makes a bad FCL, almost all the interviewees strongly denounced lawyers who are “overly aggressive”, by which they meant litigious and confrontational and, most of all, anti-conciliation:

[S]omeone who’s overly aggressive but not solution-focused. ... Not focusing on the big picture but just focusing on the fight.

The two other main responses to this question also related a failure to be “solution-focused”. A large minority criticised lawyers who are lazy or are “just [on] a gravy train” to collect Legal Aid for not being sufficiently committed to “help[ing]  people and mak[ing] a difference” for clients. Similarly, another large minority criticised lawyers who are inexperienced or lack technical legal skill, and a majority criticised non-specialist lawyers working in the FC, reviling “those great guys ... who come in from the criminal court because they’re running a bit short on work, or even worse, the commercial lawyers”. While inexperienced and unskilled lawyering might seem obvious flaws in any professional, the basis for the critique was that they tend to be non-conciliatory. Aggressive “young practitioners coming in ... all guns blazing” exacerbated conflict and inexperience also prevented lawyers managing clients towards a sensible outcome:

[Good lawyers need the strength to say] to the client, “stop it ... that’s just dumb”. And for me, the files in my life that got over-confrontational and got too long, it was when I was younger and I didn’t really have the experience or the bravery to say “I’m just not going to do that”.

Duty to the child?

Despite there being no legislatively imposed duty to consider children’s interests, the interviewees responded even more positively to the question of whether they had any ethical commitment to children’s interests than they had to conciliation, nearly unanimously evidencing immediate, powerful agreement:

[Y]ou always have to always be aware of the child. You always have to be aware of the children.

For most, protecting the child’s interests was distinct from the paramountcy provisions, a deep, personal moral stance which was part of, as one put it, “who I am as a person”. Another, asked why they prioritise children’s interests responded dryly “[b]ecause I want to sleep at night”.

As with conciliation, protecting the child’s interests had become embedded in most FCLs’ ethos of practice:

[P]erhaps it’s hard for me to conceptualise [the idea of a duty to the child] in a way because it’s just become morphed into the same way I remember to put my shoes on in the morning. I don’t consciously think about it but it’s just an innate central part of everything we do. ... I don’t think [the law and personal commitments] necessarily independent or different to each other, they are interwoven in a way that they’re coming up with the same effect in terms of what we’re supposed to do.

They often emphasised that the job of a FCL for a parent is to persuade parents to prioritise the child’s interests over their own or to “look ... at what their children need, not what’s fair to them”:

[W]ith parenting [cases] the children are the ones that need to win. You as a parent: It’s not about you; it’s about them.

Some even described this protection of children’s interests as a key difference between a “good” and “bad” FC lawyer, or between FC lawyers generally and lawyers in other fields.

Some even described this protection of children’s interests as a key difference between a “good” and “bad” FC lawyer, or between FC lawyers generally and lawyers in other fields.

Only a few outright rejected any extra personal ethical commitment, instead any focus on the child’s fortunes was purely due to the legislation they had to help their clients navigate.

“The balance thing”

Despite this enthusiasm for children’s interests, the vast majority, when pushed, still rejected the idea of a direct, formalised duty to children33 because it:

would be a real problem for any of us acting for a party if we got to a point where ... what we had to submit on behalf of our client went against the paramountcy principles.

Nonetheless, the majority still considered that “good lawyers do it [consider children], anyway”, and that some level of ethical commitment to children (short of an explicit duty) was both manageable and justifiable.

While at times, striking this balance could be “really difficult” or even “an ethical minefield”, generally the lawyers felt that they and their colleagues were able to walk the line and protect children in their work with clients:

[T]here is [an] undeniable dynamic in that [tension between client and child interests]. But ... we [FCLs] are generally quite good people. ... [I]t would be such a rare event for someone to do or say or procure something in the context of litigation just towin. I think that you’re going to get people ... even just as a human response, [saying to clients] “that’s just not a good thing to do with kids. Just don’t do that again”.

It was what another lawyer called “the balance thing”, the task of managing the “dynamic” between client and child interests, that made FC lawyering “a very specialised area of jurisprudence practice”.

The shift toward a holistic perspective was underlined by their discussions of what happened when interests of client and child could not be balanced. While interviewees were clear that their duty to the client trumps the child’s interests, on closer inspection it appeared that the balance in their decision-making had in fact shifted so that actually following client instructions had become a last resort, a tie-breaker when they could not persuade the client to adopt their preferred outcome.³⁴ Thus, client’s interests with which the lawyer disagreed had to be followed “at the end of the day”, because “ultimately it’s down to the client” and only if they could not be persuaded otherwise:

[A]t the end of the day, you’re an advocate and you can reality-test your clients all you like and try and manoeuvre them to a more realistic and a more achievable and more child-focused position, but at the end of the day some of them aren’t very receptive to that and their instructions are their instructions.

In fact, the special nature of FC lawyering was often explicitly and closely linked to the rejection of normal partisan, client-focused ethics. Thus, many described a “bad” FCL as one who obeys what would usually be considered the fundamental duty to put the client’s interests first:

A bad family lawyer ... advocate[s] for their client and what their client wants irrespective of what that means for the child because they think that’s their job.

The FCL’s work, conversely, is to instead help:

parents [to] look ... at what their children need, not what’s fair to them, in terms of “let’s cut this trial up like a cake so that everyone gets their slice”.

A “good” FCL is one who can tolerate the multiple, sometimes conflicting, loyalties, and “approach things with mixed motives”, while “people who struggle with that just can’t do this work because they can’t understand”.

The implications of this view for practice are considered later in this article.

The dysfunctional client

The final theme in the lawyers’ descriptions of family lawyering related not to the lawyers themselves but to the high levels of emotional dysfunction amongst the clients who absorbed most of their, and the Court’s, time. This is consistent with international research which has found cases that require court hearings involve high levels of concern about intimate partner violence (IPV), child abuse, mental illness and substance addiction.³⁵ In the interviewees’ discussions, client dysfunctionality was closely intertwined with the prior themes, since client dysfunction both required empathy to understand but also required — and perhaps excused—lawyers acting on their independent judgement rather than instructions.

Many lawyers discussed helping clients manage their emotions and behaviours, to the point that a few described themselves as “glorified social workers” or as having a “quasitherapeutic role”, or even “pseudo-psychologist[s]”.

Some of their advice was straightforward, encompassing basic civility and stress-management, which one described as that of a “Dutch Uncle” or giver of blunt, common-sense life advice. Thus, another might tell clients “[d]on’t write letters at one in the morning, don’t just get on the phone and call her, don’t get on the phone, go for a walk”.

However, the majority also described the clients who took most of their time as suffering “extraordinary levels of dysfunction and distress”, or “really acute, critical people” who are “difficult” and not “functional”.

Some crises were of the moment, such as the anger and grief of separation:

Sometimes one or both parties haven’t dealt properly with ... the separation. Or there’s a lot of anger or they’re trying to punish the other party.

Others described more serious mental health issues, personality disorders, or addictions as characteristic of those cases that end up before the court:

There’s the odd [case that goes to hearing because of] ... an interesting legal point in it but on the whole it’s a lot to do with intractable personalities. Often ... either diagnosed or undiagnosed mental health issues.

As this response suggests, client dysfunction was seen as the major reason cases required court time:

Well, my theory is that the Family Court deals with the worst of the worst. Most people that go through separation or have troubles don’t come anywhere near the Family Court, so by the time you get to the Family Court there’s a serious issue to be heard, whether it’s because of personalities or mental health or something effectively has been going on like domestic violence and all that sort of stuff, so they are by definition the worst of the worst.

A major refrain was that this distress or dysfunction is so high that such clients are often unable to understand their own interests. As one lawyer put it, “in family scenarios, you’ve got to understand not necessarily just what they’re telling you but what they really want”. This was described as another of the key distinctions between family law and other areas of practice:

[T]hat’s [what is] really different in Family to anything else, because in debt recovery or something like that, what [clients] want is generally what they’re going to get, or need, or what they’re entitled to going forward. Whereas in Family, a party may think that they want to destroy the other person when they don’t really want to do that, they just want their feelings acknowledged, or they need to work through the grief at the loss of the relationship: There’s just other things going on there. So, I think Family Lawyers need a lot more understanding.

Even one of the very few to explicitly embrace conventional partisan ethics and the need to “take your personal values and stick them in your back pocket” commented that it is still important to distinguish “what my client’s wanting me to do” from “best thing for the client in the big picture”.

The practical upshot of the idea that clients are unable to make good decisions was a strong focus on robust client management. At one end of the spectrum, respondents tried to “steer” the client past their dysfunctional emotions towards “sensible solutions”:

You have to be able to steer them towards the issues that need to be resolved and try and separate them from their intense personal feelings about the other person. [...] [Y]ou have to carefully strategise how you talk to and deal with your client.

At the other end of the spectrum, lawyers might need to effectively step into the client’s shoes. As one very senior lawyer commented, the “grief cycle on a divorce [means] ... you can’t leave the process to the client. You have to run the process as you see fit”.

In a related and important finding we hope to discuss in a later article, almost every lawyer also described experiencing serious strain and often distress in their work, suffering from “very big raw nerve[s]” especially related to working with traumatised and dysfunctional clients:

[I]t would be an exceptional night where I don’t wake up at some point thinking about work.

Very few had any formal support or supervision, with many describing leaning on or helping colleagues as their main source of relief:

I have actually had quite a few people, one or two years out, phone me and they have said “can we do coffee because I am really unhappy. I spend most of my day crying in my office”.

So high is the distress that one with expertise in mental health as well as legal practice commented:

[A]s a clinician, if I had a patient who was causing me the level of distress that some of my legal clients caused me, I would be verging on being disciplined for continuing to work with them clinically. Yet we go on for years sometimes with people who cause us significant distress.

The impact of client dysfunction on the lawyers’ actual practice is the focus of the next section of the article.

“Reality checking:” dysfunctionality and empathetic objectivity

The need to manage often dysfunctional clients into making what lawyers considered the right decisions was one of the strongest themes to emerge. Almost every interviewee emphasised the importance of managing or “reality checking” clients’ expectations and beliefs, persuading them into making what the lawyers considered good choices. As a parent’s lawyer “what you’re trying to do ... [is] sort of talk ... your client around to common sense: [to] what’s in the child’s best interests”. This took up “a lot of time”.

Many saw “reality checking” as an essential part of “good” Family Court lawyering. A good FCL is a “strong lawyer that manages their client to making what is a sensible offer”, one “able to have that hard conversation with your client” and be “pragmatic and ... rein ... his client in”:

[A] good lawyer will reality-check clients’ positions and provide feedback ... A less child-attentive lawyer, if you like, is much more likely just to get on board with whatever it is that their client is saying. [...] [G]ood Family lawyers will be much more able to reality-test and discuss [options] with clients ... and always with a child-centred focus.

Managerialism was cited as another key difference between family lawyering and other disciplines, and was closely tied to the previous theme of the objective lawyer who eschews conventional partisan advocacy:

That’s one thing that I notice a lot is different from the civil litigators. ... [T]hey are far more positional around their clients [while] ... Family lawyers are quite able to see the faults and shortcomings in their cases and in their clients sometimes, and that means that you can ... come to quite realistic and positive outcomes.

Conversely, a bad FCL simply executed instructions:

having no [motivation] to assisting their clients in the right direction ... [Those who are] “just being a lawyer:” ... those ... from the criminal court ... or even worse, the commercial lawyers. ... I know how they work and it doesn’t work in the Family Court.

There was clear consensus as to what is in the client’s best interests. Nearly all the respondents felt the client’s interests largely coincided with the child’s:

[T]he enquiry that I have, I hope regularly, is “is what my client’s wanting me to do ... the best thing for the client in the big picture?” [...] [F]or me the big picture is that person having the best possible relationship with their children and the children the best possible relationship with the parent.

Simultaneously, nearly as many lawyers saw it as in the clients’ interests to conciliate and reach “sensible” or “common sense” solutions that enabled good working relationships.

These two themes in the lawyers’ perceptions of their clients’ “real” interests coincide with the lawyers’ own extra ethical commitments. How much impact those wider commitments had on the lawyers’ framing of their clients’ “real” interests is a matter of speculation. Several lawyers explicitly distanced themselves from the legislative duty as the basis for their emphasis on conciliation, regarding it as more as recognition of the practical reality that a conciliatory approach produces the best results:³⁶

[Y]eah, I know [the duty to conciliate is] there but I must admit I wouldn’t know the section you’d find it under. ... [T]he duty or, more so, the benefit of promoting conciliation has a major impact on my practice because, ultimately, having done this for a long, long time, those [cases that conciliate] are the ones that do have reasonably positive outcomes.

Similarly, a number emphasised that the paramountcy provisions required them to advise the client on children’s best interests regardless of the lawyers’ personal commitments:

So it’s not the conflict [with the client’s interests] actually, because if your client is acting in a way that [is] palpably not good for the child it doesn’t help their case. So I just don’t see that as an issue actually.

Nonetheless, in each case the line often seemed blurred. Another lawyer who was equally dismissive of the idea that they derived their commitment to conciliation from the legislation used that dismissal to reinforce their view of themselves as having wider ethical responsibilities in the FC:

Truthfully, [the legislation on the duty to conciliate] really doesn’t mean anything to me because my natural purpose for being a Family Court lawyer is to make stronger and better families.

For some, discussing the law on children’s interests with clients was not merely about giving legal information but was used as a tool to persuade a client to the “correct” moral position:

I think it’s useful that [children’s interests are] the basis of the Act and that’s really useful, ... I do use the “best interests” [provisions] all the time with children issues.

Problems with “the balance thing”

On one level, it is very positive that FCLs are committed to promoting social “goods” in their work with clients. However, there are some implications which are, if not negative, at least do need some consideration in order to navigate them effectively.

Too many masters

First, that the lawyers acknowledge working to forward wider interests than those of the client alone (albeit with the client’s interests as ultimate backstop) is quite contrary to conventional legal norms in which only the Court’s interest in a fair investigation trumps counsel’s duty to the client. This difference is underlined by the scorn a majority of respondents expressed for conventional partisan lawyering.

While many felt that any conflict is minimised because largely client interests overlap with the others, they also knew this is not invariably the case. The lawyers’ actions when faced with morally unpalatable client instructions raise further issues. While lawyers did state that they will ultimately accede to client instructions, it was clear that they did so only as a last resort and after strenuous efforts to persuade the client to act differently.

Overwhelming client autonomy

Treating client instructions as negotiable and as a last resort leads to a second issue, that some of the persuasion was so strenuous that it risked overwhelming the clients’ decision-making power or autonomy. This is particularly risky given that clients do not necessarily know that lawyers have other loyalties and may trust that their advice is purely partisan.

Some lawyers described reasonably mild but still manipulative strategies, as one put it, “sort of talking your client around tocommonsense”,or (inanother’swords) “try[ing to] ...manoeuvre [clients] to a more realistic and a more achievable and more child-focused position”.

However, much of the advice was far more assertive:

I use terms like “your kid’s going to end up a basket case if this keeps going”. I am pretty robust with people. [...] I have told mothers “you are not going to get your children back. That is not going to happen”.

[I say] “I’m just not doing that, I’m not writing that. I’m not putting this text out there [...] [because it makes] you look like a ***”. ... [Y]ou can say “that’s a stupid letter and I know your mother says that your ex-wife’s a ***: ... your mother’s wrong”.

I am going to tell [my client] the mother, “no you can’t [relocate]: Relationship with daddy is more important”. [...] I am going to say “look, you’ve got no show of getting what you want”. ... As I often say to people, “there are circumstances where you just don’t get what you want in life”.

Even strictly legal advice was often very firmly delivered:

But you’ve always got to say to your client ... “look, the judge is going to take a really dim view of this; you’re going to get a real kicking for this”.

A few lawyers went further, using misrepresentation to persuade clients. One described “really understat[ing]” the client’s chances of success, coupled with threats about what the judge would likely do, as “a big part” of the job. Another was prepared to lie outright to the client to get them to comply, albeit to avoid a serious wrong:

[If the client refused to disclose a drug habit to the Court] well, I would tell a porky: ... “[T]he thing is, ... it’s going to come out”.

Several lawyers also described using threats to withdraw as a tactic to control clients:

[I say] “look, ... I can help you and I can pretty much ... get your kids back. [...] [But] [i]f you don’t want to do [as I say], I can refer you to a junior lawyer.

The lawyers sometimes described themselves as tougher on their own clients than on the opposition. One lawyer reframed “fighting fearlessly” for the client as “fighting fearlessly” with the client for the child:

[I]t’s always going to be a dichotomy for a practitioner because ... when I was called to the Bar the wording was that you would fight fearlessly for the interest of your client [against] all odds. ... [B]ut what I have often said [is that] ... fighting fearlessly looks different in different contexts. So fighting fearlessly in the Family Court in the children’s law arena is not about being aggressive ... [it is about] helping your client to continually focus on the needs of the child.

However, few lawyers were worried that their tactics could overwhelm clients, instead seeing it as a positive that “generally, most people” accept their advice. One, who had described telling a client when he was being a “***” and refusing outright to follow instructions as to who to call or what to file, commented positively:

[W]e do change our clients. It’s also part of what a good COCA lawyer is: you change your clients.

Another felt that clients welcome their extremely robust advice.

I am very blunt. Some people love that. People who don’t, go. I can count on one hand the number of people who have gone because most people [to whom] I have delivered very difficult messages over the years ... hard, hard, hard statements, but often you see abject relief in people.

There remains, however, a serious risk that some clients, especially the vulnerable population these same lawyers described, may in fact be overwhelmed by this style of advice.

Taking conciliation too far

There were also some suggestions that lawyers themselves may struggle to go against the prevailing Family Court norm of conciliation when presented with situations which called on them to do so. Although a large majority still cautioned that “it’s not a case of ‘settle at any cost’”, several lawyers described difficulties resisting the impetus to settle instead of “do[ing] the right thing” for clients and children:

There is that temptation to settle. ... [T]he bulk of the mindset of the Bar is to get things settled for people: To get them through as quickly as we can. [W]e are sometimes — “battle-shy” is not the right word ... but sometimes we are quick to settle, run the other direction. [...] And sometimes it’s not the right thing to do.

The struggle to resist was sometimes due to becoming numb to depth of problems presented, but it was also about the courage to resist the norm.

Sometimes, yeah, you have to [go to court]. And that’s not adversarial. ... I think we lose sight because we deal in volume and we deal with high levels of dysfunction, we deal with complexity. I think we have to fight really hard to keep our threshold where it belongs ... [I]t’s about holding a line as advocates. ... [A]ctually, we have to do the right thing for kids and sometimes that means being brave.

Further, several interviewees who also acted as L4C raised concerns that some parents’ lawyers settle too easily and ignore real safety issues. Several described this as common or “happen[ing] quite a bit”:

[T]he parties [in a current case] are actually looking at a consent position. I said [as L4C] “I’ll hold my breath until I get updated disclosure”. I got some of it today which says mum actually is potentially still in a violent relationship [...] [with] obvious signs of meth use ... so, I’ve just dictated an email that says ... “well, look, reach consent if you like, but I won’t endorse it. We are still going to need a safety hearing”.

Even for this L4C, there was some stress in going against the prevailing tide. That difficulty is further suggested by the fact that the cited examples, involving a risk to the safety of client or, especially, a child, present a fairly high threshold and were presented as exceptions.

This finding may provide some explanation for those inter- national researchers who have raised concerns that FCLs some- times push vulnerable clients into settlements than endanger them or their children. It also suggests that legal education should discuss the limits of conciliation more thoroughly, especially given the law states that lawyers should encourage con- ciliation only so far as “possible”.

Extra-legal issues

The risks for clients in accepting lawyers’ advice—to settle or not to settle — worsens if their lawyers are not actually qualified to give it.

The respondents overwhelmingly felt that they and most of their colleagues had a good understanding of human nature and were equipped to determine clients’ best interests and guide them to achieve suitable outcomes safely. In all seriousness, we, the authors, are confident that the respondents were thoughtful, sensible professionals. However, as many acknowledged, much of their “reality checking” covers matters well beyond any legal training, some of which were very complex.

For example, as described above, most respondents were routinely advising adult clients with serious psychological issues. While several emphasised the need to stay within their professional boundaries, and several discussed referring clients to mental health or addiction services, many still managed such clients intensively. Clients with this range of issues may be more vulnerable to pressure and less able to protect themselves from poor advice.

Only two of the lawyers described any formal training in mental health, addictions or psychology. Even more significantly, perhaps, only one other respondent wanted such training.

The lawyers also discussed regularly giving in-depth advice not just on the law relating to parenting but on children’s emotional and developmental needs in a range of parenting situations, including the level of shared care appropriate for various ages; children’s emotional needs, relocation, sexual abuse and so-called parental alienation:

We talk about the child, we talk about the history, we talk about the parenting arrangements now. A good chunk, I’ll talk about what the psychologists say in the FC, what sort of parenting arrangement is appropriate for children of that age.

In the final third of the interviews we specifically questioned the basis for this advice on children’s needs. These interviewees disclosed no training in child development or psychology beyond the short L4C course or reading a few papers.

One lawyer saw her expertise as rooted in practical experience as a mother and grandmother, “having had children and understanding babies ... maturity, life experience, common-sense”.

Most, however, said they got their information by extrapolating from psychologists’ reports on one case to their other cases:

I’ll talk [to clients] about what the psychologists say in the FC, what sort of parenting arrangement is appropriate for children of that age. ... [It’s] a bit of a personal interest. [...] Being a pseudo-psychologist. It’s not hard putting yourself in the shoes of the kids. Psychologists write good reports for the court that we all learn from as we go. [...] No [I have no training]. It’s just experience, dealing with lots of psychologists and reading lots of reports and being relatively empathetic.

Objectively, this is not an adequate basis. However, despite having no real training, most who commented appeared confident in their and most of their colleagues’ and judges’ skills and knowledge, claiming most FCLs are “a pretty in-tune bunch” and “that the quality of our judiciary is superb”. Only one wanted more education on children’s needs, alongside information on addiction and mental health issues.

Unqualified advice on complex matters, especially when given to clients with serious underlying emotional issues, is obviously problematic, especially when delivered very robustly by professionals in positions of trust and authority.

Years ago, research revealed a similar dynamic in the criminal court, where lawyers generally hugely overestimated their skills in questioning young and vulnerable adult witnesses. Consequently, the criminal court made considerable (and ongoing) efforts to adopt safer questioning techniques, and to use expert Communication Assistants and other alternative measures to enhance evidence quality.³⁷ The Family Court has, however, remained largely oblivious to the problems, and impervious to reform.

Future research into the actual extent and quality of FCLs’ extra-legal expertise and advice could help determine whether clients are at real risk. However, given the serious potential impact, the Law Society and Universities might consider offering more training immediately to prevent helpful “Dutch Uncle[s]” becoming dangerously unqualified “pseudo-psychologist[s]”.

“Counsel to counsel” confidential discussions

Another potential concern with the hybrid/holistic model was that many lawyers felt it entitled them to hold secret negotiations with opposing counsel or L4C to agree a suitable outcome unbeknownst to the client. While counsel to counsel negotiations without the client present are a normal feature of any legal practice, aspects of the way these lawyers discussed this aspect of their practice presented ethical challenges, concerns researchers have also noted in England and Wales.³⁸

Half of our lawyers described holding these secret “counsel to counsel chats” and a number elevated such discussions to a characteristic of good FC lawyering:

A good COCA lawyer can talk to the other lawyers off the record. I think that inter-counsel communication is quite important and I do get ethically that’s complex but I don’t think it’s serving your client by not negotiating and playing poker all the time. I think [it’s better] actually occasionally saying to another lawyer, “I don’t know, this trip to Fiji is really important to her so if you just give me this I’ll bet when she gets back we’ll be able to sort this out”.

Some engaged in this practice believing the clients were incompetent to negotiate themselves, and so substituted their own judgement as to what was a good outcome:

[Good FCLs are] [c]ollegial, very able to say “look your client’s unrealistic, mine might be a little bit unrealistic too, no one wants to be sitting here in 18 months arguing about this, do you think this is a realistic outcome, can we move this forward?” A heck of a lot of stuff gets resolved on that basis. Always has; hopefully always will.

Some were clearly actively engaging in such discussions to protect other interests over their clients’ “so that these poor kids who’re being brought up in the middle weren’t screwed up even more”.

Equally concerning, in these “chats”, some revealed their advice to their clients, or disclosed disagreements with their client, even doing so undermined the client’s case. For example, one lawyer discussed, approvingly, a conversation where the opposition lawyer admitted she considered her client’s case weak and had advised her not to proceed. Further, the interviewee said (approvingly) that they expected mother’s lawyer to covertly signal their disapproval of their client to the judge in the upcoming hearing. Noting that “if a client insists on staying with you, there are limits on our ability to actually sack them as clients”, she stated:

I know that [Mum’s] lawyer (because we had a chat after Court today), has spoken to her on those very terms [telling her she has a weak case] but the allegation she’s making is quite serious so ... she’s got to put them before the Court ... [But] I think we all have ways of phrasing things so that it is very clear that we are doing what our client wants but not what we think is best. You can pick up a letter and [tell] ... [W]e’ve got a really collegial bar here ... so most of us are able to just ring up the other counsel and say “look, [let’s] have a frank discussion”, knowing that it’s not going to go any further than that.

Unless the lawyer had explicitly agreed this approach with the client, and only one gave any indication that they did so, disclosing client information and client-counsel discussions like this risks breaching the Code of Conduct. Only one lawyer emphasised the need not to withhold “relevant information” gained in side-bar discussions from the client. Others appear to have acted covertly, as shown by their emphasis on the need for trust in the other lawyer’s discretion. Lawyers had to “know the [other lawyers] that you can’t have those conversations with, so you just don’t”. A couple even expressed frustration with lawyers who “gallop ... off and putting [their disclosures] in an affidavit”:

[A bad FC lawyer is one who] if you say something to them off the record they then bring it against you. And that has happened more often than you can you know. Because as L4C I will often say something to someone, you know, off the record — “look this is how I feel, just keep that under your belt” and the next thing you know you see it in an affidavit. That drives me crazy. And that’s a bad family lawyer.

These “chats” are one of two instances where some respondents described behaviour which might breach the Code of Conduct, the other being deliberately misleading clients in order to influence their behaviour, as described above. Both cases indicate that encouraging lawyers to pursue wider interests and the “right” outcome can put considerable strain on traditional ethical norms.

We have no doubt that counsel to counsel discussions do benefit many clients. However, unless there is transparency between lawyer and client, the conduct is still at the least highly paternalistic and at worst a breach of ethics.

Personal morality

“Counsel to counsel chats” also suggest the holistic model has shifted FCLs’ self-perception in other ways. Conventionally, and famously, a lawyer’s personal moral disagreement with the client’s beliefs or behaviour are irrelevant to whether they agree to represent the client or to their advocacy thereafter. Lawyers openly reject or dispute their client’s position only in response to a threatened breach of their professional duty not to mislead to the Court. Conversely, FCLs who expect to be able to tell colleagues they disagree with their own clients suggest personal morality is directly relevant to FC lawyering. Thus, a “good” FCL will not just remain objective but tells the other lawyer when they disagree with the client:

You know, there’s always those scenarios where the lawyer says, “look I have no choice, I have to tell you this”. In fact, I had a conversation like that today. [That’s better] [t]han the ones that will argue with you black and blue because they believe what their client’s telling them.

Similarly, a few others who discussed sacking or trying to sack clients with whose moral decisions they disagree was justifiable in a way quite alien to conventional lawyering:

I’m ... parting ways with the parent who’s purposely trying to keep the other parent out of the child’s life: Undermining ... contact or essentially alienat[ing] the other parent. That’s where I’ll part ways. I refuse to be a part of a problem. It goes back to my ethos.

Arguably, this insertion of the self into advocacy is a natural consequence of a system that expects lawyers to exercise independent judgement and actively manage clients to the “right” moral outcome. Unlike in conventional lawyering, a FCL’s personal moral judgement is a professional tool and a professional asset. Accordingly, perhaps some FCLs feel they need to advertise (and then protect) their reputation for good judgement more than would a conventional lawyer.

Although these lawyers were a minority, they suggest that the holistic/hybrid model has some unexpected implications which may be worth discussing further.

Discussion

Family law gets a really bad rap. The idea that it’s really simple and its laws of evidence are really loose is actually not true. [I]f you want to actually start analysing it in terms of ethical rules and philosophical approaches to ethics it’s fucking complicated, actually. It’s far more complex than criminal which is kind of black and white.

These findings suggest that the Aotearoa/New Zealand FC’s founders have succeeded in persuading its lawyers to eschew conventional partisan adversarial ethics, with a significant impact on their sense of themselves and their role. In fact, the respondents regarded FC lawyering as a specialist field specifically because of its wider ethical responsibilities and were particularly dismissive of conventional partisan norms.

Just as have overseas FCLs, these respondents had embraced the wider FC values of conciliation and child protection strongly. While it is impossible to tell from these self-reports whether their practice is actually non-confrontational, they at least wanted it to be so. So strong was their commitment to conciliation that they eschewed litigation except as a last resort where serious safety or other issues with the clients’ mental health made settlement either unwise or impossible.

The respondents felt obligated by their wider ethical man- date as FCLs to advocate for the FC’s values with their clients, balancing the competing interests but generally believing that most clients’ interests ultimately aligned with their wider objectives. In the more serious cases, they believed that grief, anger or deeper dysfunctions meant many clients lack the competence to give proper instructions, reinforcing their sense of a responsibility to step in to manage clients into the proper ethical choices. Seeing through clients’ distorted thinking to “what they really want” meant that the key characteristics of the FCL were strong empathy or emotional insight coupled with a strongly objective or independent stance. The lawyers’ commitment to a good outcome then required them to take a strong hand in persuading clients to accepting their advice.

There is a remarkable degree of correspondence between these findings and the international research literature on FCLs, with our FCLs closely resembling their “hybrid” and holistic practitioners.

There is much to celebrate in these FCLs’ perceptions of their role, and it can be counted as a major success for the legislators who first imposed the duty to conciliate. What is also clear, however, is that the hybrid/holistic model creates challenges as well as benefits.

Challenges include that their high motivation to achieve “good” outcomes may lead some FCLs to actively promote other interests over those of the client, underestimating or ignoring real conflicts. There is a significant risk that some lawyers may pressure clients to comply with their advice to the point that the clients’ autonomy is endangered. Some may even go to the extent of working against the client’s expressed instructions and at one extreme, disclosing confidential information without permission and entering into secret agreements between counsel. Equally, some lawyers may struggle to resist the pressure of their own and their colleagues’ expectations of conciliation when clients need them to buck the trend and head to court. There is also an associated concern that lawyers are underqualified to work in and advise on some areas in which they are routinely involved, in particular, mental health and child development.

Other impacts are harder to evaluate. The holistic/hybrid model seems to be shifting some FCLs’ sense of their role so that their personal morality has become part of the currency of lawyering in a way that it has not been previously. What implication this has for clients is unknown.

We strongly suggest that urgent attention be given to offering more training on mental health, child development and family violence but also on navigating the ethical boundaries of FC lawyering.

Conclusion

The Family Court is an exceptionally difficult arena and it is clear that the respondents in this study were responding to those difficulties with courage, care and commitment. However, we do a disservice to lawyers and clients if we do not recognise that their model of practice is conflicted, at times concerningly so. There is an urgent need for further research and open debate in order to protect not just clients but the lawyers themselves.

This article was written by Dr Emily Henderson, Prof Mark Henaghan and Gemma Coutts for the New Zealand Family Law Journal. To enquire about the New Zealand Family Law Journal subscription, please submit the form below: