Should there be a Hippocratic oath for family lawyers? First, do no harm
The Hippocratic oath is an ancient and well-known solemn pledge taken by doctors. It can succinctly be summarised with the phrase “first do no harm”. Doctors have a responsibility and duty of care which means that patients trust them with their lives. Trust is sacred and fundamental to the doctor-patient relationship. Decisions and treatment must be in the patient’s best interests.
But what of the solicitor client relationship? Family lawyers occupy a unique position where they, like doctors, help and support individuals in a time of personal crisis, often they are in pain and distress. We are needed during times of emotional turmoil and vulnerability. Trust is a fundamental tenet. Should there be a Hippocratic oath for family lawyers?
Family lawyers do have ethical duties towards their clients. We are bound by practice rules and fundamental principles of client care. Failure to comply with the rules and obligations can lead to findings of professional misconduct and in extreme circumstances a solicitor can be barred from practice or face legal sanction. Practice rules do impose an ethical standard and a duty of care. For example,
Practice rule B1.4
“You must at all times do, and be seen to do, your best for your client and must be fearless in defending your client’s interests, regardless of the consequences to yourself (including, if necessary, incurring the displeasure of the bench). But you must also remember that your client’s best interests require you to give honest advice however unwelcome that advice may be to the client and that your duty to your client is only one of several duties which you must strive to reconcile”
A framework of professional rules govern all family lawyers alongside their own individual personal and moral code. Lawyers must carefully balance duties to their client, the court and their firm. There is a stereotype of the ‘Rottweiler’ lawyer who will fight for you in the courtroom and ‘win’ because of their dominance and aggression. But this is not representative of modern family law practice. Family lawyers are now expected to be trauma informed, sensitive and compassionate. A client needs those qualities because they are invariably experiencing great upheaval and personal pain when they consult a family lawyer. Trust is built through empathy and understanding.
When a marriage breaks down, or there is disagreement about much loved children, an adversarial approach is rarely the best way to help a client. Court is by nature adversarial, pitting one side against another. In litigation there is a winner and a loser. Not so in family law. There is usually only resolution through compromise. Marital finances must be shared and it is well recognised that children thrive when they are able to spend time with both parents. Therefore court often results in stress, cost and an unhappy client who perceives that they have ‘lost’. It can make a separation more painful and dredge up past trauma. This is why a competent and ethical family lawyer will do their utmost to avoid court and to explore alternative methods of dispute resolution. Collaboration and mediation skills are an integral part of family law practice. The best outcomes are achieved when both sides have a family lawyer who avoids tactics which amplify distress.
Although family court proceedings aim to reduce conflict, they are by nature oppositional. A good family lawyer will not rush to court or seek to deepen acrimony. If court action is unavoidable, we must remember that our client is most likely vulnerable and emotional. Our role is to guide them through the court process without exacerbating conflict. We must also be cognisant of the bigger picture beyond the immediate proceedings. More often than not, a separating couple will require to be in each other’s lives forever because of the children they share. If every family lawyer took an oath to ‘do no harm’ they would ensure communication is carefully framed with the dynamic of the family in mind. We do not help our client if our correspondence or court pleadings trigger greater rupture and acrimony. Although our primary duty is to our client, they are part of a wider family structure and we should be mindful of how we can impact this. It is incumbent on us to consider with each communication whether we are truly helping our client. We must consider the condition they will be in after our role has concluded. Divorce and separation are a form of bereavement. If we strive to first do not harm we can help the client transition from a painful situation and envisage a different future. We can opt for a holistic compassionate approach over short term tactics which cause harm and deepen divides.
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