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CBA AGM - Family Section Resolution on Model Code Amendments

Tracy C Brown

view Arbitrator profile
Brown Law Group
Edmonton, Alberta

Hello Family Lawyers who are CBA Members,

The National CBA AGM is Feb. 4th noon to 4pm ET (10-2pm MT) - virtual.

The Family Section has a Resolution that:

The CBA engage the Federation of Law Societies on amending Model Code Rule 5.1-1 with new commentary clarifying the role of lawyers in non-adversarial proceedings and amending the Model Code to include standards of practice for Family lawyers.

https://www.cba.org/AGM/Resolutions/25-07-A

Pre-registration for the AGM is required at least 48 hours prior - at https://www.cba.org/AGM/Home

The Family Section has been working on proposed amendments to the Model Code of Professional Conduct for YEARS!! (well before my time) And there was a big collaborative effort together with the Child & Youth Section and Ethics Committee during the 2019-2021 period resulting in a CBA Submission to the Federation of Law Societies on Amendments to the Model Code of Professional Conduct re non-adversarial advocacy and standards of practice for Family lawyers.

So - fast forward to now - the Family Section is trying to keep the discussion and debate alive on these important ethical issues and create space for further debate --- ultimately wanting to encourage the Federation of Law Societies to put these proposed amendments on the agenda for broader consultation in the legal profession.

The word on the street is that the issue of non adversarial advocacy may be on the Federation's agenda in the coming period - so the CBA Resolution is timely and strategic to ensure we are getting organized to work on a formal Submission on this issue.

The specifics of “Standards of Practice” for Family lawyers is obviously more controversial in nature, and a bigger nut to crack. We know there are passionate views. Significant work was done on this over several years as noted above, with the fleshed out proposal in 2021 (available online and in the background materials for the Resolution). The Resolution now is not proposing detailed wording recognizing that there would need to be updating and further discussion and debate inside the CBA to build critical mass around an updated Submission. The intention is that the Resolution will ensure space to continue the work to engage the Federation on these issues. Clearly such a Resolution is just one step and part of a multi-year, multi-pronged strategy to continue this work.

These ethical debates are relevant to the evolution of legal practice. There have been “Standards of Practice” for Family lawyers in BC since 2011. Ontario has been grappling with similar Standards. It is not happenstance that the Alberta Law Foundation just gave $28.6 million to the U. of Calgary Faculties of Law and Social Work for a Centre for Transformation of the Family Justice System. The Re-Imagining Family Justice movement across the country, brain science, our understanding of how the “justice system” harms children and families, our obligations under the Divorce Act, our obligations under the UN Convention on the Rights of Children, etc. – all point to a shift over the last few decades in how we practice Family law which makes it different from other types of law practice with so many ethical considerations. And there has been a groundswell of academic and activist support for enhanced ethical obligations in relation to family violence over the last few years – which is a key component of all of this.

We also note:

** The proposed Resolution builds on the 2021 CBA Submission but seeks to create the space to revisit and update this Submission. Aspects of the 2021 Submission will have already been dealt with in the current amendments to the Model Code related to indigenous cultural competence. There has been some forward movement – bit by bit.

** The proposed Resolution is generic enough to not preclude ongoing debates about specific wording in a future CBA Submission to the Federation of Law Societies.

** The Federation of Law Societies, as with the legal profession more generally, is unlikely to prioritize these ethical issues without the dogged determination and persistent advocacy of the Family and Child/Youth lawyers!

Thanks for your time and attention. And hopefully, Family lawyers will attend the AGM and vote in support of the Resolution!

Hello Family Lawyers who are CBA Members,

The National CBA AGM is Feb. 4th noon to 4pm ET (10-2pm MT) - virtual.

The Family Section has a Resolution   that:

The CBA engage the Federation of Law Societies on amending Model Code Rule 5.1-1 with new commentary clarifying the role of lawyers in non-adversarial proceedings and amending the Model Code to include standards of practice for Family lawyers.

https://www.cba.org/AGM/Resolutions/25-07-A

Pre-registration for the AGM is required at least 48 hours prior - at https://www.cba.org/AGM/Home

The Family Section has been working on proposed amendments to the Model Code of Professional Conduct for YEARS!! (well before my time) And there was a big collaborative effort together with the Child & Youth Section and Ethics Committee during the 2019-2021 period resulting in a CBA Submission to the Federation of Law Societies on Amendments to the Model Code of Professional Conduct re non-adversarial advocacy and standards of practice for Family lawyers.

So - fast forward to now - the Family Section is trying to keep the discussion and debate alive on these important ethical issues and create space for further debate --- ultimately wanting to encourage the Federation of Law Societies to put these proposed amendments on the agenda for broader consultation in the legal profession.

The word on the street is that the issue of non adversarial advocacy may be on the Federation's agenda in the coming period - so the CBA Resolution is timely and strategic to ensure we are getting organized to work on a formal Submission on this issue.

The specifics of “Standards of Practice” for Family lawyers is obviously more controversial in nature, and a bigger nut to crack. We know there are passionate views.   Significant work was done on this over several years as noted above,  with the fleshed out proposal in 2021 (available online and in the background materials for the Resolution).  The Resolution now is not proposing detailed wording recognizing that there would need to be updating and further discussion and debate inside the CBA to build critical mass around an updated Submission. The intention is that the Resolution will ensure space to continue the work to engage the Federation on these issues.  Clearly such a Resolution is just one step and part of a multi-year, multi-pronged strategy to continue this work.

These ethical debates are relevant to the evolution of legal practice. There have been “Standards of Practice” for Family lawyers in BC since 2011.  Ontario has been grappling with similar Standards.    It is not happenstance that the Alberta Law Foundation just gave $28.6 million to the U. of Calgary Faculties of Law and Social Work for a Centre for Transformation of the Family Justice System.  The Re-Imagining Family Justice movement across the country, brain science, our understanding of how the “justice system” harms children and families, our obligations under the Divorce Act, our obligations under the UN Convention on the Rights of Children, etc. – all point to a shift over the last few decades in how we practice Family law which makes it different from other types of law practice with so many ethical considerations. And there has been a groundswell of academic and activist support for enhanced ethical obligations in relation to family violence over the last few years – which is a key component of all of this.

We also note:

**  The proposed Resolution builds on the 2021 CBA Submission but seeks to create the space to revisit and update this Submission.  Aspects of the 2021 Submission will have already been dealt with in the current amendments to the Model Code related to indigenous cultural competence. There has been some forward movement – bit by bit.

**  The proposed Resolution is generic enough to not preclude ongoing debates about specific wording in a future CBA Submission to the Federation of Law Societies.

**  The Federation of Law Societies, as with the legal profession more generally, is unlikely to prioritize these ethical issues without the dogged determination and persistent advocacy of the Family and Child/Youth lawyers!

Thanks for your time and attention.  And hopefully, Family lawyers will attend the AGM and vote in support of the Resolution!

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