Family law is an area of the profession where a client may have expectations that a lawyer can do, or take action, against the other party which may not be appropriate legally or ethically. In this area of practice being an ethical lawyer is more important than ever.
We spoke to family lawyer and College of Law lecturer Kathryn Kearley to explore the critical connection between legal expertise and professional conduct. We explore the ethical challenges that family lawyers encounter, their ethical obligations, and the strategies lawyers can employ to navigate complex situations and dilemmas.
What are the key ethical principles for family lawyers?
All legal practitioners are governed by professional conduct rules. For solicitors in most states and territories, except the Northern Territory which has its own local conduct rule, these are set out in the Legal Profession Uniform Law Australian Solicitor Conduct Rules 2015 (ASCR) and the common law.
For those working on family law cases, the key ASCR rules are:
- the paramount duty to the court and the administration of justice (Rule 3)
- fundamental duties including to act in the best interests of the client, to be honest and courteous and to deliver services completely and diligently (Rule 4)
- the advocacy rules including not misleading the court, not being a mere mouthpiece for the client, and exercising forensic judgement (Rules 17- 28)”
Courteous communication with the Courts is also important, and the Courts issue statements to guide lawyers and law firm staff on their expectations. This includes: Communicating with chambers | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
Communication must be formal. Using "Kind regards" as a sign off is not appropriate when communicating with the Court: Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949.
Understanding and applying these professional conduct rules is important for family lawyers in daily practice.
Common ethical dilemmas in family law
"Ethical dilemmas frequently arise in family law,” Kathryn says. “A key imperative is to inform a client of all alternatives to a full trial under ASCR rule 7.2, and so ensuring they understand the benefits of resolving the case without a full hearing. This conduct rule also aligns with the Federal Circuit & Family Court's Central Practice Direction for Family Law Case Management."
Another critical issue is maintaining confidentiality, a fundamental duty under ASCR rule 9.
“It’s essential that nothing about the case is shared outside of your firm,” Kathryn says. “Dispute resolution, including mediation, is a key component of the family law process. While mediation is confidential and private, it's important to remember that lawyers cannot mislead the mediator or the other party, as outlined in rule 19 ASCR and the glossary."
"Unfortunately, sometimes a family lawyer may become too close to their client's case, and doing so the lawyer loses independence,” Kathryn says. “This was highlighted in the case of Simic v Norton [2017] FAMCA 1007 where the lawyers' conduct was strongly criticised by Justice Benjamin who reminded lawyers that they must not be a mere mouthpiece for their client. Here, the lawyers were observed to have acted in a bitter and highly aggressive manner, incurring expenses that were not proportionate to the issues. As the parties incurred excessive costs, the lawyers were referred to the Office of Legal Services Commissioner for investigation."
Conflicts of interest are also a live issue.
"Lawyers and their firms must be vigilant in avoiding situations where they act against current or former clients,” Kathryn says. “ASCR rules 10 and 11 provide guidance on this, and cases like Osferatu v Osferatu [2015] FamCAFC 177 highlight the importance of careful conflict checks and file opening procedures."
In addition, specific obligations for lawyers arise in certan circumstances such as when acting for a child or when appointed as the Independent Children's Lawyer. Helpful guides are available on Court websites and also by the state and territory law societies/institutions. For example:
- Guidelines for Independent Children's Lawyers | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
- Guide for practitioners in the Evatt List | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
- Representation Principles for Children's Lawyers - The Law Society of NSW
How should family lawyers respond to ethical dilemmas?
It’s important to remember that ethical dilemmas will arise in legal practice. When faced with an ethical dilemma, a lawyer should first consult the Australian Solicitors' Conduct Rules to understand their duties and obligations.
"The best way to manage ethical challenges is to have a thorough understanding of a lawyer's duties and obligations,” Kathryn says. “This helps early identification when ethical questions come up. It's crucial to stay calm and avoid decisions made in haste. Always consult another lawyer before taking any action. Seek guidance within your firm from your supervising lawyer, a senior colleague, or the designated ethics partner."
"If this isn't possible, the lawyer can seek guidance from the ethics department of their state's law society/institute. Importantly, any disclosure by a lawyer to an ethics lawyer is an exception to client confidentiality, under rule 9.2.3."
Understanding how to handle ethical issues is crucial for lawyers and their firms to manage risk, minimise insurance claims, and avoid disciplinary action. In addition, adhering to the Court's practice directions and the Law Council of Australia's "Best Practice Guidelines for Lawyers Doing Family Law Work" will assist lawyers to act ethically and professionally in family law cases.
Useful Resources: Ethics for Family Lawyers
Kathryn recommends a range of useful resources published by various law societies/institutes across Australia that are available to help lawyers act in an ethical way and properly navigate dilemmas in family law:
New South Wales:
Northern Territory:
- Rules of Professional Conduct and Practice - Law Society Northern Territory | Law Society Northern Territory (lawsocietynt.asn.au)
- Contact us - Law Society Northern Territory | Law Society Northern Territory (lawsocietynt.asn.au)
Queensland:
- Ethics and Practice Centre - Queensland Law Society (qls.com.au)
- qls.com.au/Practising-law-in-Qld/Ethics-Centre/Ethics/Introduction-to-Applied-Legal-Ethics
- QLS Ethics and Practice Centre
South Australia:
Victoria:
Western Australia:
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By Wenee Yap, Legal Features Writer for the College of Law