1. Deborah Awyzio Accredited Family Law Specialist DA Family Lawyers, Brisbane

2. Ethics in Parenting Matters FLPA Twilight Seminar Thursday 6 June 2013 Deborah Awyzio

3. Perennial Ethical Problems in Parenting Cases
Children becoming inappropriately involved in proceedings.
Children speaking to lawyers.
Becoming aware of children being at risk of harm.
You are approached by a new client to give a second opinion when already represented by another lawyer.
You are required to make an ex-parte application.
Acting on a speculative or deferred fee arrangement.

4. Tools to assist Australian Solicitors Conduct Rules
When they commenced;
In June 2011 the Law Council of Australia adopted them; and
It was then up to each state to adopt them
Queensland did on 1 June 2012
South Australia did on 25 July 2011
New South Wales and Victoria are currently in the process of considering reforms.

5. Nature of the Australian Solicitors Conduct Rules
The Conduct Rules provide that their purpose is to “assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules.” (Rule 2.1)
The rules are produced as a guide and a breach of them cannot be enforced. They assist in determining whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct.
Some of the general principles re-iterated in the Rules include:-
Duty to the Court is paramount. (Rule 3.1)
Duty to the Client: A solicitor must follow a client’s lawful, proper and competent instructions. (Rule 8.1)
Confidentiality (with exceptions to general principle set out). (Rule 9)
A solicitor must not deceive or knowingly or recklessly misled the court. (Rule 19.1)

6. Children becoming inappropriately involved in proceedings
Family Law Rules
Children reading material
Referral to support services

7. Children speaking to lawyers
If you represent the parent, you never speak to the child
Refer to other professional
Best interests of children paramount principle

8. Children at Risk of Harm
Obligation to maintain client confidentiality
Exceptions to confidentiality (Australian Solicitor Conduct Rule 9.2)
Compelled by law to disclose
Preventing imminent serious physical harm to the client or to other person
Section 67ZA Family Law Act – independent children’s lawyers

9. Obtaining a Second Opinion
It is entirely a matter of choice for the solicitor
No obligation to inform the other solicitor, but professional courtesy may dictate disclosure, but only if client consents
Can agree to not provide opinion, or only do so on the basis that you will disclose to the other solicitor
Advise of risks to client – termination of retainer
Look at QLS web-site;
their-clients

10. Ex-parte Application
Australian Solicitors Conduct Rule 3.1 applies – duty to the court and administration of Justice is paramount.
Australian Solicitors Conduct Rule 19.4 provides:-
A Solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:
are within the solicitor’s knowledge;
are not protected by legal professional privilege; and
the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
These duties are as important in preparing the material to be filed as in appearing as advocate.
Family Law Rule 5.12 re-iterates these principles

11. Speculative or Deferred Fee Arrangement
“A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor, or an associate of the solicitor, except as permitted by this Rule.”
Rule Australian Solicitors Conduct Rules is relevant.
Important to recognise the potential for conflict and disclose this to client.

12. Facebook Can you tell a client to clean up their Facebook Page?
Section 177 of the Legal Profession Regulation 2005(NSW), “An Australian legal practitioner must not give advice to a client to the effect that a document should be destroyed, or should be moved from the place at which it is kept or from the person who has possession or control of it, if the practitioner is aware that:-
It is likely that legal proceedings will be commenced in relation to which the document may be required; and
Following the advice will result in the document being unavailable or unusable for the purposes of those proceedings.

13. Lester v. Allied Concrete Co
USA court sanctioned an attorney for counselling his client to “clean up” his Facebook page
Advice given to client after receiving a request for discovery relating to client’s Facebook page
Attorney instructed client to deactivate the Facebook page

14. Twitter/Blogging Rule 28 of the Australian Solicitors Conduct Rules
28.1 A solicitor must not publish or take steps to publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.
Section 121 Family Law Act
A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings or of any part of any proceedings, under this Act that identifies:
a party to the proceedings;
a person who is related to, or associated with, a party to the proceedigns or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

15. Twitter/Blogging
A solicitor must not engage in conduct which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute. (Rule 5.1)

16. Gathering of Evidence Social media;
Can you access information from someone’s Facebook page to use in evidence?
New York State Bar Association opinion (Opinion #843 (09/10/2010)
Ethics_Opinions&ContentID=55951&template=/CM/Conte ntDisplay.cfm
An attorney may access the public pages on another party’s social networking web-site for the purpose of obtaining information about that party.
As long as the lawyer does not “friend” the other party or direct a third party to do so.

17. Why bother Facebook trawling?
Department of Communities & Compton [2010] FamCA bin/sinodisp/au/cases/cth/FamCA/2010/711.html?stem=0&synon yms=0&query=facebook
Department of Communities (Child Safety Services) & Fraser [2010] FamCA 340 (4 May 2010) bin/sinodisp/au/cases/cth/FamCA/2010/340.html?stem=0&synon yms=0&query=facebook
Two cases where evidence of communications on Facebook used in Hague Convention matter to determine the issue of consent. Postings were made about intentions at time of departure from a Country.
Why bother Facebook trawling?

18. Wadmal & Amrita (No. 2) [2008]
FamCA 1062 (5 December 2008) – Justice Brown
bin/sinodisp/au/cases/cth/FamCA/2008/1062.html?stem=0&synonyms= 0&query=facebook
Used evidence of photographs posted on Father’s Facebook site to show he had not complied with conditions of order for supervision and time to be restricted to his home (photos of child at beach).
Looked at date photo was posted and got receipt for dress she was wearing and referred to her hairstyle at the time.

19. Rose & Barwon (No. 2) [2010]
FamCA 738 (2 August 2010) – Justice Barry bin/sinodisp/au/cases/cth/FamCA/2010/738.html?stem=0&synonyms=0&query=facebook
Mother made the following entry on her Facebook site. The entry reads:
I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000.
And, then, a:
Bwahahaha lol.
His Honour relied on this evidence in respect of conduct under 117(2)A.
The Father had to seek a recovery order in relation to the children (he was the primary carer). An order was made for the mother to pay the father’s costs fixed at $15,000.

20. Doolan & East [2012] FamCA 459 (17 May 2012) – Justice Collier
bin/sinodisp/au/cases/cth/FamCA/2012/459.html?stem= 0&synonyms=0&query=facebook
Father’s Facebook entry had a photograph of a pile of chips and the wording “Robbing Star Casino 2011”.
The Father had been asserting he no longer suffered from his gambling addiction.

21. Text messages and emails
Important to include the entire communication. This can be misleading by omission.
Rule A Solicitor may not deceive or knowingly mislead the Court.

22. Hypotheticals Scenario 1
Your opponent in a hearing before a Federal Magistrate in submissions refers to your client having completed a parenting orders program, when you know that is not the case.
You are next to make submissions – what do you do?

23. Hypothetical – Scenario 1 cont..
Rule 19.2
A solicitor must take all necessary steps to correct any misleading statements made b the solicitor to a court as soon as possible after the solicitor becomes aware the statement was misleading.
Rule 19.3
A solicitor will not have made a misleading statement to the court simply by failing to correct an error in a statement made to a court by the opponent or any other person.

24. Hypotheticals Scenario 2
You have instructions to file an urgent application seeking a recovery order for a three month old child. You act for the Mother who is breastfeeding the child. You have previously written to the Father seeking the voluntary return of the child and the Father sent you an setting out the reasons why he would not return the child, which raise some issues about the Mother’s parenting of the child.
What do you do?

25. Hypothetical – Scenario 2 cont..
Rule 19.4 Australian Solicitor’s Conduct Rule
A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:
are within the solicitor's knowledge;
are not protected by legal professional privilege; and
the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

26. Hypotheticals Scenario 3
A client tells you that they are not going to comply with a parenting order which provides for a child to live with the other parent – they are going to keep the child and not return the child, contrary to the order.
What do you do?

27. Hypothetical – Scenario 3 cont..
Rule 20.3 Australian Solicitor’s conduct Rules.
A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must:
advise the client against that course and warn the client of its dangers;
advise the client how to carry out or conceal that course; and
not inform the court or the opponent of the client’s intention unless:
(i) the client has authorised the solicitor to do so beforehand; or
(ii) the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety .
Advise client against that course and warn of dangers.
Not advise the client how to carry out or conceal that course.
Not inform the court or opponent of client’s intention unless client authorised it or solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to a person’s safety. (eg. Child had health problem which needed specific treatment).
Look at provisions of the act – reasonable excuse for contravention (for the shortest amount of time necessary to protect the child).

28. Hypotheticals Scenario 4
A Mother comes to you and says she thinks the Father has sexually abused their child because the Father was involved in a sexual relationship with his Sister when he was 15 and his sister was She wants to commence a parenting application seeking supervised time only between the Father and the child.
What do you do?

29. Hypothetical – Scenario 4 cont..
Rule 21.2 Australian Solicitor’s conduct Rules
A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
are reasonably justified by the material then available to the solicitor
are appropriate for the robust advancement of the client’s case on its merits;
are not made principally in order to harass or embarrass a person.
Rule 21.3 Australian Solicitor’s conduct Rules
A solicitor must not allege any matter of fact in:
any court document settled by the solicitor;
any submission during the hearing;
the course of opening address; or
the course of closing address or submission on the evidence,
Unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.
21.4 advise client of seriousness of allegation and possible consequences.

30. Hypotheticals Scenario 5
You are at court and you witness your client’s former partner (the other side of your matter) assault your client outside the court room.
Can you continue to act?

31. Hypothetical – Scenario 5 cont..
Rule 27 Australian Solicitor’s conduct rule
In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
In a case in which it is known, or comes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.

32. Hypotheticals Scenario 6
Your client comes to see you and provides you with a copy of a letter of advice from another solicitor, addressed to their former partner. They disclose that they have printed it out from an account they can still access.
What is your advice to the client?

33. Hypothetical – Scenario 6 cont..
Rule 31 Australian Solicitor’s conduct rule
Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use material and must:
Return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and
Notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.
A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:
Notify the opposing solicitor or the other person immediately; and
Not read any more of the material
If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.

34. Useful Links
Australian Solicitors Conduct Rules 92D F7-5436F67E9BCD&siteName=lca
The Law Society of New South Wales Professional Conduct and Practice Rules Legal Profession Act df
The Law Society of New South Wales
The Law Institute of Victoria – Guidelines on the Ethical Use of Social Media Media.aspx
The Law Institute of Victoria – Inadvertent Disclosure Guidelines

35. Useful Links
Mandatory reporting of child abuse
Queensland Law Society Ethics Centre