Wednesday, September 24, 2008

A Cautionary Tale

It is well known that a trap for all family lawyers is to become personally involved in their client's case. Feelings often run high, and the lawyer can be caught up in their client's emotions. It is of course absolutely essential that this is avoided, and the lawyer is able to give objective advice to their client. With some clients this can lead to them thinking that you do not care about their case, and you may have to reassure them that you do of course care, and that you have a professional interest in the outcome of the matter. In extreme circumstances, you may even have to cease to act if the client continually instructs you to take action that you have advised them against, if they have not already ceased instructing you. If that is the case, then so be it - professional integrity is everything, and the temptation to bolster fee income by continuing to act must of course be avoided. The client has come to you for your advice, and for their sake that advice must be unbiased, even if it is not what the client wants to hear.

The case of D.I v. S.I. from America seems to provide a cautionary tale as to what can go wrong if the lawyer loses his/her impartiality. The mother was refused leave to relocate with the children, and responded by applying for the judge to be recused on the grounds of bias. Her application was supported by a 53-page affidavit prepared by her attorney, and described as a "diatribe" against the court for rejecting her bid to relocate. In it, she accused the judge of punishing her on account of her Catholic upbringing and political ideology, while going to great lengths to favour her husband, a partner in a law firm. In a separate affidavit, she compared the proceedings to "a gang rape[] ... by a bunch of lawyers all sanctioned by the State of New York". The wife's attorney defended himself by maintaining that his actions fell within the "duty of zealous representation". Needless to say, the judge was not impressed, and he refused the recusal motion, and imposed a $2,500 sanction against the wife's attorney.


  1. There's a Texas death penalty case where one of the grounds of appeal is that the Judge was at it with prosecution counsel at the time...

  2. Why do they get all of the exciting cases over there? ;-)


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