Lawyers’ Incivility in Family Law and the Question of Systems Abuse

Abstract

Family law has a reputation for incivility, which is curious given that ideas about civility are vague and imprecise. The legal profession experienced a civility movement, but concerns about lawyers’ incivility have resurfaced following the COVID-19 pandemic. In this paper, I present the results of a case law review which does not support family law’s reputation for incivility. Instead, however, the results show three significant problems. Incivility is not commonly reflected in law society disciplinary or family law decisions, but when it is, the misconduct is extreme or part of a cumulative pattern, suggesting a high threshold. Second, when incivility occurs in family law, it is often in cases where there are allegations of intimate partner violence (“IPV”), raising questions about lawyers’ incivility as a tool of systems abuse. Finally, there are worrying cases of lawyers representing themselves in their own family law matters which also involve findings, allegations, or suggestions of IPV. These results demonstrate that civility, as a vague and imprecise concept, has the power to distract decision-makers and shift the focus from abuse to professionalism, contributing to the myriad ways the justice system fails survivors. I argue that, where there is IPV, lawyers’ incivility on behalf of an abusive client (or themself) amounts to systems abuse, which is something lawyers must not participate in because it is contrary to their duty to uphold the rule of law and violates lawyers’obligations to the administration of justice.