New Scholarship: Full Disclosure: Family Violence and Legal Ethics

CALE member Deanne Sowter has a new article up on SSRN. Abstract is below:

Abstract

Family violence creates ethical challenges for all family law lawyers, but it creates unique challenges for collaborative lawyers. Two of the tenets of collaborative practice are good faith and transparency. Two of the fundamental professional duties for lawyers are the duty of loyalty and the near-absolute obligation to keep client confidences. These ideas are at odds with each other, and the impact is problematic where there is family violence. This paper looks at the duties of loyalty and confidentiality, the contractual obligation in collaborative practice of full disclosure, and the presence of family violence. It looks specifically at the ethical challenges that arise when disclosing information pursuant to the collaborative practice participation agreement that create risk of harm for a spouse when there is family violence. Collaborative practice is still in its infancy in Canada, and without regulation, the options lawyers have when there are ethical challenges due to family violence are not conducive to meeting client interests, including promoting safety. Ultimately, this paper presents a solution in the form of collaborative practice legislation, amendments to the Model Code, and practice guidelines. The focus of the paper is collaborative practice, but some of this discussion is relevant to non-CP family lawyers as well, so where possible the recommendations are broad enough to include all family law lawyers.

OBA Foundation Chief Justice of Ontario Fellowships

Congratulations to CALE members Kelly Gallagher-Mackay and Deanne Sowter on being the recipients of this year’s awards! Both of their projects sound very interesting.
Summary on website:

2019-20 WINNERS

The winners for the 2019-20 year are Kelly Gallagher-Mackay of Wilfred Laurier University in the Fellowship in Research category and Deanne Sowter, a Research Fellow at Osgoode Hall Law School, in the Studies category. Prof. Gallagher-Mackay will by studying the experiences of international law graduates in Ontario after receiving Certificates of Qualification from the National Council on Accreditation, to practice law in Ontario. She will be studying the effect of these lawyers and candidates on the internationalization of legal and professional education.  Ms. Sowter will be studying the question whether psychological or coercive harm should be included in the professional rules exempting physical violence or harm from duties of confidentiality and solicitor-client privilege.  Both projects promise to advance the law’s understanding of emergent and important topics that affect the practice of law in Canada.