The Ethics Committee and Department of the Law Society provides guidance on ethical issues to all practitioners. The following scenarios have been drafted to highlight some current and frequently arising ethical issues. The scenarios also highlight a couple of the changes that came with the new Conduct Rules introduced on 1 January this year.
Q: I am acting for the wife in family law proceedings. Unfortunately, she is struggling with various addictions. The psychologist has just issued a report and has warned that she will probably react very badly when she sees it, so they have asked me not to provide it to her. It is likely that, as a result of the report, she will only be allowed limited access to her two small children in future, yet I suspect those children are all that are keeping her going.
A: This is where you have to exercise all your training in being a dispassionate, independent adviser. You must stand back and not get involved in this highly emotional situation.
The first consideration would be your client’s capacity. Does she have it currently? Will she have it if she sees the report? There are guidelines on the Law Society’s website about capacity, which may help you make that judgment. You also have the assistance of the psychologist’s warning as a qualified professional’s judgment that she may lack capacity in future. It may be that you need to seek a guardian of some sort to be appointed, to ensure your instructions are valid. As rule 8 says, you act on ‘competent instructions’.
Ensuring your client has capacity is also part of your obligations to the court as its officer. The running of the court is predicated on competency and you must play your role in ensuring that.
The second consideration is the potential restriction on complying with your obligation to put at your client’s disposal all the material information you have. This obligation is part of your duty as your client’s fiduciary. You therefore must not agree to any such restriction. That is where a guardian could be of assistance, as they would be able to be an intermediary in delivering the contents of the report to the client.
The other important point here is the possible threat of physical harm to the children. In family law, the children’s interests are paramount and override your duties to your client. Even beyond family law, you have an obligation to protect people in such situations. That is why there is a clear exception to our confidentiality obligation in rule 9 when someone’s life is at risk.