Is our profession under siege?

The potential danger associated with the practice of family law is a topic that most practitioners avoid. When it does come up, we often minimize our experiences.

By not sharing our thoughts and experiences openly, we have helped to frame this issue both individually and collectively as an isolated and infrequent problem that affects only the odd lawyer.

We also see the problem as deriving from outside ourselves in the sense that the cause lies in the emotional or mental instability of the perpetrator rather than in anything we as individual lawyers or collectively as a profession are doing.

Looking at the problem of violence and threats against lawyers in this isolated and highly individualized way has meant that the problem has remained relatively hidden.

Existing research on the issue, however, challenges the current understanding and assumptions of Ontario’s legal profession. It clearly identifies that violence in the legal profession is pervasive and not at all random. The available data also indicates that family lawyers are at particular risk.

The first study appears to have taken place in 1997. The research by the American Bar Association consisted of a survey of its family law section conducted by facsimile.

Two hundred fifty-three lawyers responded. The survey revealed that 60 per cent of those lawyers had experienced threats by opposing parties; 17 per cent reported threats by their own client; and 12 per cent stated they were victims of violent acts perpetrated by either a client or an opposing party at least once.

To date, there has been only one study in Canada on this issue. The data stemmed from an Internet survey conducted on 5,539 practising members of the Law Society of British Columbia.

Of the roughly 1,150 lawyers who responded, 59.2 per cent reported varying degrees and numbers of threats. The researchers, Karen Brown and David MacAlister, summarize some of the findings as follows:

•    It can be stated with certainty that lawyers are experiencing abuse, threats, and injuries as a result of discharging legal responsibilities.
•    The idea of random violence can be nullified.
•    Substantiating the American literature on this subject, family lawyers, prosecutors, and criminal defence lawyers are vulnerable to enhanced threats.

What these studies illustrate is that lawyers in several different jurisdictions are experiencing abuse, threats, and injuries while acting in their professional capacity. This raises the very real possibility that lawyers in Ontario may also be facing similar abuse at a similar rate as those who participated in the studies.

There are likely many reasons why the matter of violence against family lawyers has met with reticence. First, family lawyers have become accustomed to violence and threats to the extent that they do not consider these factors to be risks at all but merely components inherent in their profession.

Second, because family lawyers deal with misery, anger, and pain on a daily basis, they tend to underestimate the emotional toll a separation or divorce can take and discount the significance of an angry gesture or threatening remark. In addition, many see it as just part of the cost of doing business.

The combination of lawyers’ false bravado and distorted perception of the problem all conspire to create a climate of minimizing and individualizing threats and violence. Consequently, it is not at all surprising to learn that what little action there has been by our professional organizations in Ontario to address the issue has focused on offering lawyers tips on how to protect themselves.

If violence is systemic in Ontario, as it appears to be in other jurisdictions, and if family lawyers are at particular risk, then ensuring an appropriate response should be a priority for them and their professional associations. The first step in crafting a solution is to gain some understanding of the possible motives for violence.

A number of theories examine the possible motives. While each one looks at different factors, there is a common thread in all of them: perpetrators who are angry with the way the system copes with their matter act out with physical or verbal violence against one of the lawyers involved in the case.

The sources of anger may be different in that some are upset because of perceived or real deficiencies in the legal system; some due to real or imagined problems in the legal profession; and others because they feel harmed or wronged by the particular lawyer. 

Regardless of the source of the anger, if what we do as individual lawyers and collectively as a profession can influence the degree of risk we face, then our current response to the problem is inadequate.
Individual lawyers and professional associations need to take the issue of violence seriously.

The first step individual lawyers can take is to have a zero-tolerance policy toward violence. That means never ignoring physical threats and taking all of them at face value. Lawyers need to become aware of safe practice tips and develop and implement individualized safety protocols and plans while working on improved civility and client service.

Responding as a profession must include working to modify the deficiencies in how the public perceives it. The Law Society of Upper Canada is already exerting much effort in this regard as both it and many lawyers see the public’s negative perception of lawyers as a real threat to our ability to continue as a self-regulating profession. Continuing these efforts will indirectly benefit the cause of eradicating violence against lawyers.

Raising lawyers’ awareness of the problem and the measures they can take is another logical step as this builds upon what we already have.

The Ontario Bar Association publishes a personal safety handbook that is available for less than $15. These handbooks should not only be free but should be accessible on all of our professional association web sites and distributed to members of the bar regularly. This latter step should commence with a lawyer’s call to the bar.

Our associations should also be developing education modules that deal with personal safety tips and protocols and with what it means in practical terms to interact with opposing parties and lawyers in a civil and courteous way. Some of these materials already exist.

But it is important to go further by incorporating training on safety protocols, tips, civility, and courtesy into our continuing education programs as well as including some training at the law school level and as part of the bar admission program. 

Our associations should also be advocating for adequate supports for lawyers targeted by threats and violence. For example, it would be helpful to provide improved court security for lawyers.  
One critical way in which the law society could help is by having staff whose job would be to act as liaison between the lawyer and police. 

In addition, given that there’s little empirical data on the issue of violence against lawyers in Ontario, perhaps one of the first things we need to do is gather data. We could do this, for example, by including key questions as part of annual member reports to the law society.

Given that the safety of family lawyers in particular is likely at stake, it is time that they and their professional organizations take the problem seriously.

We need to find a way to shift the burden for coping with violence from the individual lawyer and instead take on a shared responsibility in which practitioners, organizations, and professional societies are active participants in the process of thoughtful consideration, development, and implementation of effective measures to protect family lawyers.

For more on this story see "Lawyers suffering violence alone" and "Time to address violence against lawyers"

Victoria Starr practises in the areas of family and child-protection law and is a mediator and arbitrator at Starr Family Law in Toronto.

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