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Overcoming aggression (from opposing counsel and their clients)

In a practice area as sensitive as family law, lawyers have to be held to a higher standard – one that prioritises sensitivity and compassion rather than conflict and, perhaps, should include additional mandatory training.

Perpetua Kish will never forget the time she worked with a particular family law barrister, who she said “wore his courtroom assault on a party as a badge of honour”.

Ms Kish – whose Canberra-based practice, Balance Family Law, won Boutique Law Firm of the Year at the 2020 Australian Law Awards – said the barrister adopted such an approach not just to win cases, but to secure new clients.

She recalled him saying, in one particular instance with prospective clients, that the subject of a previous cross-examination he had conducted “‘said that being cross-examined by me was more traumatic than her walking in on her new partner attempting to hang himself’. The clients later engaged this barrister, saying to me: ‘He may be a hired gun, but he is ours’. What ensued was a woman’s sexual history being used against her with such ferocity so as to undermine her complaints”.

Adversarial approach for the sake of it

Ms Kish isn’t the only one to come up against practitioners who adopt such an attitude.

VM Family Law and Adieu Legal principal Katherine Manby, who works in Brisbane and won the Regional/Suburban Lawyer of the Year category at the 2019 Australian Law Awards, said there are lawyers who feel that being combative and aggressive will help ensure the best outcome for clients. Such an approach, she submitted, is not conducive to an area like family law.

“Lawyers working in this area should be safety focussed, whilst trying to achieve an outcome that is desirable for their client.  Enabling or instigating further intimidating or harassing behaviour towards the aggrieved should not be accepted in this area of law,” she said.

Some practitioners, she noted, do not understand or appreciate the impact that domestic violence can have on its victims and/or children – something she said she is fully cognisant of when representing perpetrators.

“As part of my role as a domestic violence and family lawyer, I consider my role to be helping that client become accountable for their actions to assist in the safety and wellbeing of the victims. When I act for perpetrators, I make it clear that there are things that they can do to assist their situation and the potential for any order to be made against them, such as change behaviour courses,” she outlined.

However, she added, she does not assist those clients in continuing to subject the aggrieved to further domestic violence, by way of harassing and intimidating the aggrieved into withdrawing their applications.

“Unfortunately, there are practitioners who conduct themselves in this manner, to try and achieve the best outcome for their client. An example of this is when practitioners attend a DV mention for a perpetrator and indicate their client will consent to an Order, if the Aggrieved consents to a Parenting Plan. This often puts a great deal of stress on the aggrieved, who may be so fearful and desperate for safety, they agree to something they may not ordinarily agree to,” she said.

Gold Coast-based Tiernan Family Law director Julann Tiernan supported this: “We frequently witness unnecessarily aggressive written correspondence from other lawyers which serves only to flare up tension and put further pressure on clients who are already threatened and scared of their former partner.”

It is sadly apparent, she mused, “that a certain type of client attracts the same type of lawyer, one who will increase tension in already heated and strained matters.”

Gaming the system to continue abuse

Exacerbating this issue is the too-often occurrence, Ms Tiernan continued, of perpetrators of DV entering into the legal system in such a way that continues the coercive control over their victim.

“This can manifest in various ways, such as the perpetrator seeking to cause unnecessary delays in the system by way of adjournments,” she said.

“This is often quite a passive aggressive approach, where perpetrators will ignore requests for engagement or financial disclosure until the last minute or until faced with no other option at which time they will capitulate.”

This, Ms Manby said, is something she sees weekly – including but not limited to perpetrators filing proactive protection orders for the sole purpose of tainting such applications made by “the real aggrieved person”, making them the cross-applicant.

“The whole system is another way in which an aggrieved person can be further abused by the perpetrator.  Quite often the perpetrators of the highest levels of DV are those that are unlikely to consent without admission to any order. This puts the aggrieved through a trial, which relives the trauma by being subjected to cross examination from the legal team of the perpetrator,” she said.

Once, she recalled, a perpetrator asked her if the proceedings were expensive for her client.

“I understand that everyone has a right to challenge and defend an application against them, however, there are a significant number of matters where the evidence is so clear against the perpetrator that the application is almost guaranteed to be successful, and yet the perpetrator still runs the matter to a final hearing,” Ms Manby said.

“This obviously increases the costs for the aggrieved and puts them through additional trauma or reliving the incidents that have been subjected to and further cross examined on these incidents.”

Enabling a client’s actions

What is most disappointing, the trio said, is when practitioners sitting across the table from them conduct themselves in ways that serve to enable a perpetrator’s actions, on top of an already-existing adversarial nature.

It is “most disturbing”, Ms Tiernan posited, when lawyers are engaged and act outside of their duties “to continue this type of abuse”.

“A recent example was a lawyer acting for a respondent who directly contacted my client despite it being clear I was retained, utilising an aggressive and threatening tone,” she said.

Ms Kish added that she has seen written correspondence from lawyers designed, she noted, as part of a greater strategy to “overwhelm and subdue” the opposing party.

“I have seen ‘advice’ letters given by a lawyer to their client with the intention that it is shared with our client directly (their former partner). This ‘advice’ leaves out crucial information, such as the duty to provide financial disclosure, and is provided based on their client’s point of view only, discounting or omitting completely any information provided by the other party. Such correspondence would also highlight the other party’s alleged missteps as fact, and serve to compound their client’s gaslighting behaviours,” she detailed.

Such occurrences are “upsetting” for her clients, to say the least.

“They would feel defeated, and very often acquiesce under the pressure. In such circumstances, my client had been the vulnerable party, either because they were financially reliant on the other party or in one instance, had visual impairments with limited employment prospects,” she said.

Lawyers really need, Ms Kish argued, to balance how they approach any ambiguities in the law when advising clients with their own professional and ethical obligations.

“I find it’s the more surreptitious actions that more easily evade suggestions of unethical conduct on the part of the lawyer,” she said.

A higher standard needed

In the face of such adversity – in an area of law that is already more emotionally draining for clients and lawyers than most – family lawyers should “absolutely” be held to a higher standard, Ms Tiernan said.

Part of this, she said, could be more movement towards fixed fees rather than time-based billing, so as to disincentivise dragging out disputes and moving more quickly towards resolution.

Mandatory empathy training could also be introduced, she suggested, akin to what is being discussed in Federal Parliament. “Sad that we have to raise that, but there are many in the family law sphere who are not empathetic, or say they are, but then act in the alternative,” she mused.

Part of the problem, Ms Manby explained, is that there is very little training in this practice area for lawyers.

“You need to be able to deal with emotional issues and be able to identify levels of risk for clients, often when they don’t even see any risk themselves. Lawyers also need to know how to work collaboratively with other organisations, such as DV shelters and DV support organisations,” she said.

“It is my opinion that there should be a specialist accreditation for solicitors working in this field. Lawyers should also be required to complete a level of CPD each year to work in this area of law. Education is key to increasing the ability of practitioners and the courts in reducing the numbers of incidents of domestic violence and the significant number of deaths we see each year in Australia.”

For Ms Kish, the issue isn’t that lawyers are “purposely choosing to contribute more harm” by enabling perpetrators, it is that they are not prioritising conducting themselves in a manner that promotes compassion.

“We should work to a higher standard by acting in the best interests of our clients to help them achieve good outcomes and still practise with kindness and compassion. We should not have to forsake one for the other. The two approaches are not mutually exclusive,” she argued.

“The narrative needs to shift from saying, ‘I’m right and you’re wrong’, to one where we instead say, ‘There is a serious problem here, and people and families have been harmed or are at risk of harm. Let’s pause the blame game and look at how we as practitioners can help clients navigate difficult situations with care and compassion, instead of escalating conflict’.”

Moreover, Ms Kish added, navigating such difficult client matters through better education, kindness and support should be prioritised over “vilifying practitioners”.

“We are more likely to engage positively with practitioners who engage in these enabling behaviours if we approach them without judgement, with a view to understand and don’t condemn their previous practice methods. When we speak to the best in people, people are more likely to respond from the best in them,” she said.

Moral considerations

It is, of course, the right of the lawyer of a perpetrator to look for any weaknesses in an opponent’s case and amplify those things, as well as any technicalities in the law that might be favourable, Ms Kish reflected. This is morally justifiable, she said, because there are reasonable expectations that justice will prevail.

However, she added, “in so many circumstances”, disputes will not proceed all the way to judicial determination, and as such, lawyers in this practice area should consider whether a shift from rights to responsibilities is necessary.

“While we must represent our clients to the full extent of the law, we must remember when working with individuals who are in distress, and we have a responsibility to act with great care and sensitivity,” she argued.

“Adversarial lawyering becomes the norm and, to an extent, the expectation in high conflict cases. I have spoken with other lawyers, who suggest we can’t make a difference, and there is nothing we can really do as individuals to bring about change in a hurry. But, perhaps, that is where we are off track.

“Even if we can’t see how our individual actions can make a difference, sometimes it’s enough to do something just because it’s the right thing to do.”

Lawyers also need to consider the “silent victims who often don’t have a voice”, Ms Tiernan said in support. In family law and DV matters, that means children of the parties.

“Our role as advocates extends beyond our immediate client and our behaviour as advocates can have long lasting effects in life and death situations,” she said.

Put another way – this is, “quite literally, an area of law that is life or death”, Ms Manby insisted.

“Lawyers should not simply dabble in this area. They should take every opportunity to ensure their education is up to date and that they fully understand the intricacies of the legislation and rules,” she concluded.

This article originally featured on Lawyer’s Weekly

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