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News and Views — This Week in Family Law

By: Philip Epstein

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Winnipeg — Family Uncontested Motions List — Professional Conduct

Skinner v. Skinner, 2013 CarswellMan 612 (Man. Q.B.): This case will be of particular interest to family lawyers in Winnipeg, but it does have some lessons for family law lawyers at large. The case begins with a discussion of the Family Uncontested Motions List which is apparently Winnipeg's way of dealing with uncontested motions. While I mean no disrespect to the Winnipeg judicial system, the idea that the court sits every Tuesday morning to triage 120 motions while dozens of lawyers gather in the room with clients to gossip, argue, and negotiate, strikes me as time to develop a new system for Winnipeg. I know of no other jurisdiction that deals with its motions list in such a fashion. It results in some cases being directed to a judge who is to then hear a motion without having had an opportunity to review the file. This approach is the very opposite of the front end loaded system that is designed to encourage negotiation, narrow issues, and reduce motions. I am ill informed about this Uncontested Motions List, but it does seem to me to be an odd practice. However, my point of reviewing this case arises from Justice Rivoalen's comments about professional conduct and the role of family lawyers. Accordingly, I repeat what Justice Rivoalen had to say as follows.

Clients can take unreasonable positions, but lawyers must serve as their own gatekeepers of professional conduct rather than blindly following instructions. Lawyers are not free to act on whatever instructions they might receive from their clients. On the contrary, lawyers are obliged by their rules of professional conduct to refrain from acting on certain instructions. Put another way, distinct restrictions or disabilities accompany the rights and privileges afforded to lawyers. One such restriction or disability precludes them from carrying out the instructions of over-zealous clients.

It is the lawyer who has conduct of a litigation file - not the client. The lawyer must maintain a certain independence from the client and must not let the client override his professional judgment. The lawyer is required of course to take instructions from the client, and owes a duty to do his best for the client; but an important part of the lawyer's job is to steer the client through the rocky territory of litigation. The lawyer is responsible for his word, both to the Court and to opposing counsel. He owes a duty to each. The lawyer must maintain his integrity and the honour of the profession at all times - even in the face of assertive clients and challenging courtroom environments. All of this is essential to his reputation and relationships with opposing counsel, which are of fundamental importance to the practice of law.

We all need to be reminded of our role in the system, and the potential conflict between what our client wants us to do and what we ought to do. Justice Rivoalen's comment that "lawyers are not free to act on whatever instructions they might receive from their clients" bears repeating and repeating. We all know that the family justice system is badly in need of reform. It is unlikely, in my view, that Canada will move to a Unified Family Court in every jurisdiction, and it is even more unlikely that either the federal government or the provincial governments will devote sufficient financial resources in order to alleviate some of the systemic problems that now exist. If there is to be any reform at all in the family law system in the next few years that is going to be effective, it will need to start with the lawyers and how they conduct their cases. If we wait for the federal and provincial governments to enact reform, it will not happen. We can take a small step by considering carefully what Justice Rivoalen had to say and exerting more control over the process, and in particular, our clients when such control is necessary.

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