The Rules of Professional Conduct: A Conflicting Guide for Counsel in Child Custody and Access Proceedings

Abstract

The Rules of Professional Conduct [Rules] of the Law Society of Upper Canada outline the professional and ethical obligations of all members of the legal profession in the province of Ontario. Lawyers are required to turn to these Rules when faced with ethical and professional dilemmas in their everyday practice. However, the acrimonious nature of family law often makes the application of these rules impractical. This article examines the vague and conflicting guidance the Rules provide to family law lawyers faced with ethical dilemmas in child custody and access proceedings. It is proposed that past disciplinary proceedings of other lawyers actually provide the most concrete and clear guidance for family lawyers faced with difficult ethical dilemmas. This state of affairs is problematic, as disciplinary proceedings are not meant to be a forum for teaching ethical standards. The proceedings were created as a method for reprimanding lawyers who deliberately violate the Rules. To alleviate this problem, it is proposed that the Rules should include a hierarchical ordering so that family law lawyers are not faced with conflicting advice when resolving their ethical dilemmas.