Ep 17: Lies, retainers and when to walk

In this episode of This Week in Family Law, we cover the latest updates in Australian family law, including a farewell to the Honourable Justice Aldridge, a new AI practice note from the Supreme Court of Victoria, a landmark Canadian decision recognising a new tort of intimate partner violence, and the Court's new robing policy. 

For Ethics with Elena, we dive into what to do when your client isn't telling the truth, including real examples from practice, the ethical obligations around terminating a retainer, and the rules you need to know before you walk away.


Chapters:
0:00 - Introduction
1:20 - What's Up? - Updates in Family Law for this week
6:15 - Ethics with Elena - When Your Client is Lying to You


Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.

About the podcast:
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.

Topics covered in this episode:
- Reflecting on the success and growth of the podcast as Season One wraps up
- Farewell to Justice Aldridge after more than a decade on the Family Court bench
- Victoria’s new AI practice note and what it means for legal practitioners
- Whether other Australian courts will follow Victoria’s lead on AI guidance
- Canada’s landmark recognition of a new tort for intimate partner violence
- The new robing policy for barristers and solicitor advocates in court appearances
- Why clients sometimes lie or withhold information from their lawyers
- Real practitioner stories involving fabricated evidence, hidden assets, and deceptive conduct
- When lawyers are ethically required to stop acting for dishonest clients
- Key professional obligations under the Australian Solicitors’ Conduct Rules

Links:
Ceremonial sitting to farewell The Honourable Justice Aldridge
https://www.familylawsection.org.au/events/14-other-family-law-events-aiflam/2179-ceremonial-sitting-justice-aldridge.html

New Practice Note and Judicial Guidelines on the use of artificial intelligence | The Supreme Court of Victoria
https://www.supremecourt.vic.gov.au/news/new-practice-note-and-judicial-guidelines-on-the-use-of-artificial-intelligence

Landmark Supreme Court of Canada decision creates new tort of intimate partner violence | Canadian Lawyer
https://www.canadianlawyermag.com/news/general/landmark-supreme-court-of-canada-decision-creates-new-tort-of-intimate-partner-violence/394112

Barber & Chalke [2024] FedCFamC1F 356 (22 May 2024)
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2024/356.html?context=1;query=Barber%2520&%2520Chalke;mask_path=

Robing policy | Federal Circuit and Family Court of Australia
https://www.fcfcoa.gov.au/policies-and-procedures/robing-policySonnet 4.6

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Transcript

SPEAKER_01 0:09

Welcome to This Week in Family Law, the go-to podcast for busy Australian family lawyers who want to stay updated without the overwhelm. I'm Jenna Downey, and my co-host today is Eleanor Bazewska. Eleanor, it's our last episode of the season. How are you feeling about it?

SPEAKER_00 0:27

I can't believe it's our last episode. We're on episode 17, and we've also recorded a few bonus episodes and for something that has started this year, and we probably didn't even contemplate it kicking off in such a nice and positive way and to continue it and be on episode 17 is pretty special, I think.

SPEAKER_01 0:47

It is. And we've enjoyed it. I think that's the main thing. It has been a weekly commitment for us, someone in the team, to do. But the fact that we have enjoyed it so much and the feedback has been so positive, it has really um motivated us to just keep going with it.

SPEAKER_00 1:03

Yes, I think we've all become more comfortable with the idea. Better probably presenters, or we hope our listeners think so. Slight improvements in our delivery. But overall, it's been a real fun ride.

SPEAKER_01 1:15

It has. And I look forward to next season as well. So do I. Now let's get into this week's updates. What's up, Eleanor?

SPEAKER_00 1:23

There are multiple updates this week. Um I'll start off with a brief update from Friday last week. On the 22nd of May in the afternoon, there was a ceremonial sitting to farewell the Honourable Justice Aldridge, um, who was sworn as a judge of the family court on the 13th of December 2012.

SPEAKER_01 1:46

The there's also been a new practice note issued by the Supreme Court of Victoria. Can you tell us a bit about that?

SPEAKER_00 1:55

Yes. It's a practice note and a judicial guideline as well. And essentially, we'll link you the um the source so that you can read both, particularly if you're a practitioner based in Victoria. The practice note recognises the potential of AI to increase or enhance access to justice, but of course, there are elements of uh warnings to uh court users, and I'll quote two particular mentions within this practice note. The court users are responsible for the content of their court documents. This is the case whether or not a court user has utilized AI. And the other quote that I took from that was court users should be aware that filing a court document which contains inaccuracies could result in cost orders. So there was a good balance in uh encouraging its use, but also cautionary in its nature. So if you're a particularly a practitioner based in Victoria, we encourage you to read both documents.

SPEAKER_01 2:55

Yeah, and I think it's it's good news really on the AI front, and it will be interesting to see how the Supreme Court of New South Wales then um updates their practice note and potentially follow suit with this.

SPEAKER_00 3:07

Yes. As we know, New South Wales was the first, and I imagine other states also will follow suit after Victoria and release um practice notes. There's an interesting update and quite a positive one. It's in an international one in nature. In Canada, there has been a recognition of a new tort of intimate partner violence in a landmark decision. The Supreme Court of Canada recognized a new tort paving the way for litigants to pursue damages against their romantic partners for a range of conduct beyond physical violence, including isolation, humiliation, surveillance, financial control, sexual coercion, and intimidation. And really interesting and quite lengthy news article about that, which I encourage our you our listeners to read as well.

SPEAKER_01 3:58

Yeah, and I presume that has been received quite positively in the in the jurisdiction too, in terms of having something now available.

SPEAKER_00 4:07

There is, uh there seems to be a positive reception to it, and in the article there's also a historic outline of how they came to this decision.

SPEAKER_01 4:16

And finally, there's a very important update on the robing policy at the court.

SPEAKER_00 4:21

Can you share share that with us? Well, I'll firstly share an in um an embarrassing fact, which is I I read it as uh robbing, not robing policy. So if you're based in New South Wales and Queensland, it might mean that there's not a significant change to what you already do. However, for other states, um the court has released a robing policy in relation to professional court attire. I sometimes wonder what has influenced certain um practice directions to come out. So, but in this instance, the direction to the profession is that barristers and solicitor advocates also are required to be robed for certain um court events, and they include final hearings and other um serious um hearings that require people to give evidence. So there's a list of um final hearing style court appearances that required that type of robing. Um, and I won't go through that list, but we'll again link the policy in our show notes. Um, and I'll read a funny segment um about some exceptions. So there was um in that policy uh a statement that these arrangements are subject to any contrary direction made by the presiding judicial officer, which may take into account, for example, the nature of the venue in which the court is sitting or the unavailability of air conditioning, as well as the usual practice for solicitor advocates in certain locations. Um, just thinking about this policy being waived on the grounds of no air conditioning made me laugh.

SPEAKER_01 5:58

I'm glad that it's given consideration though, because I can imagine it's it's an issue in some places. Yes, particularly in Queensland, I would think. Thank you, Eleanor. And that's what's up for this week. For Ethics with Eleanor this week. Eleanor is going to talk to us about dealing with dishonest clients and the ethical obligations of lawyers.

SPEAKER_00 6:24

Thanks, Jenna. This is an issue that I think we commonly see in practice. And some of the examples we'll talk about are probably something all of our listeners have experienced or have a colleague who has experienced. So before we get into the topic, what I really want our listeners to um walk away with from this episode is something beyond our knowledge, or which is, I believe, very common knowledge, that our duty to the client is less than our overriding duty to the court, which is a common principle that we're aware of. Um so we'll go into some more ethical um uh obligations. And also we'll go into at what stages can a solicitor terminate their retainer because there are specific rules about when they can that can be done. Firstly, let's get into why clients lie. Um, and the word lie sounds quite um forceful and dramatic, but really why clients are dishonest, why clients may feel the need to not reveal the whole story to us or however we want to word it, why clients are not telling us the entire truth. So the first uh point that I made here is fear of how the truth looks. And that's probably something that we can't readily detect, but like an interview for a job, a client comes in to have a first initial conference with a solicitor and probably feels the need to put their best case forward in a sense, and that um will include um possibly minimizing or reframing certain situations to um to get a greater understanding or to feel better about what the situation is.

SPEAKER_01 8:09

I feel like talking of initial consultations, I feel like I've also had those clients who come in and you can tell that something is bothering them and they might be a little bit reserved in that conversation, but they then tell you something which has obviously been on their mind for some time, and to you it's it's not that much of a big deal, but they they seem to think it is a really big deal. And then when you talk to them about it and the relief that they've actually told you is very visible with those clients. So it seems to be, particularly for people who have never even interacted with a lawyer before, quite a difficult first meeting to have. And to the point of why clients lie, I can in a way understand why clients would feel like they need to put their best case forward to this lawyer who they want to represent them throughout proceedings.

SPEAKER_00 9:03

I totally agree with you. Clients just they get so anxious and stressed about putting forward their history, their case, and they really do see it like a job interview or like a serious professional interview. And sometimes because of that, it's second or third um client conferences later that we reveal a little bit more of the story. So that's something we need to be conscious of. Obviously, that is the more um innocent or part of practice or part part in parcel with client stress type of reframing or minimizing situations or altering the truth that happens often. There's also more um sinister um situations of active deception to gain a tactical advantage in matters or lies by deliberately omitting facts to lawyers. Um, the difficulty is to detect these situations because the client uh sometimes may not know that in doing this they are actually misleading their lawyer. They may genuinely believe their own version, um, they may be omitting by not understanding what's important, or they may just be overwhelmed and lack the uh focus to be able to give the full story. Um and then that being one client and then the other client being the deliberate one in their approach. And as a lawyer meeting with a client for the first time in particular, it's hard to say see the difference. So, in terms of the differences in um why people may uh clients may lie, um I thought it would be um a good thing for us to think about labeling the severity of lies. Um, obviously, this is so dependent on the matter that you're dealing with and the circumstances, but I thought a low level or a manageable or common level of um lie could include slightly overstating a parenting role, um, but winding up or down certain figures of a balance sheet to um I guess better suit the client's position. Have you seen that happen in practice?

SPEAKER_01 11:14

Yes, uh quite a bit. Yeah, I feel like that would be quite a common issue that practitioners would come across.

SPEAKER_00 11:21

And I I think a more mid-level, or as I have characterized it, a mid-level or needs active management from the solicitor would be something like a misrepresentation of a material fact, such as that client or the other party's income, anything to do with significant assets or living arrangements or relationship status. I have had situations where clients haven't been truthful about the fact that they've repartned. Um given the history of the relationship, for various reasons they just haven't had made that disclosure. And the first time I have found about it out about it, sorry, is through a letter from the other side. So um and certainly inconsistencies between what they've said and what other documents show, whether it's a letter or court document, I would also characterize as a mid-level or needs active management type of lie.

SPEAKER_01 12:11

I've certainly had clients who they've been asked to provide uh financial disclosure, whether it's initial disclosure or a subsequent request for disclosure, and they just refuse to provide it as well, which that in itself is is difficult to manage as well.

SPEAKER_00 12:29

Yes. And we'll talk a little bit about that because that then places the burden on the solicitor to work out how they manage that situation. A high level um or a type of lie that would probably require the lawyer to stop acting, which I thought was probably not a very common uh occurrence, but I did speak to our team and we'll talk about a sample of different um mistruths that they have had from their clients. Um and from having that conversation, I do realize it's a bit more common perhaps than what I had contemplated. So a high-level or practice-ending style lie would be a fabricating or coaching of evidence, uh, lying about family violence allegations, or instructing the solicitor to make representations that you know or suspect are false. So perhaps we go through the examples we got from our team. Please. And if we can label them low, mid, or high level of severity, or perhaps how how common we believe these are. And our listeners, please do comment and share your views on these. And certainly if you have examples, we'd love to hear them as well. So the first one was I had a client to Photoshop a drug test so that it was negative instead of positive.

SPEAKER_01 13:51

That's horrible. Pretty severe, isn't it? That's pretty severe to do that. Um they must have been pretty good with Photoshop, I think, to think that they'd get away with it, but they obviously didn't if this has become that has come to light.

SPEAKER_00 14:07

Yeah. That's right. I also thought that was very um, yeah, very severe. Um the second example was bleaching or bleaching of the hair or colouring of the hair multiple times in a short period of time to again change the result of a hair test resulting, yeah, in a different area.

SPEAKER_01 14:28

It's a similar sort of example as the first one, isn't it?

SPEAKER_00 14:31

I agree.

SPEAKER_01 14:32

It's quite severe in terms of trying to cover up what is clearly an issue of drug or alcohol abuse.

SPEAKER_00 14:39

Yes. The third example one of our team members gave us was a client told me he sold a motor vehicle and it was not part of the asset pool, but he kept it parked at the front of his parents' house so the other party saw it. Um Imagine hiding assets is probably common, but hiding a car that's visibly parked in front of uh, you know, a residence that the other party frequents is bizarre.

SPEAKER_01 15:13

It it is. It's probably not the most sensible asset to to try to not disclose, um, but obviously it does happen.

SPEAKER_00 15:23

Yes. And I thought it was probably a mid-level to the extent that I know the value of that car and what um material difference it made to the balance sheet. But certainly um, yeah, that was a surprising one as well. The fourth example was um my client said that the other party had nothing to do with setting up the business. But it came out in the other party's evidence that she did help a lot in the initial planning and that she was actually much more involved than my client let on. So just minimizing of contributions in general.

SPEAKER_01 16:01

Yeah. Yes, which does hap which does happen, and is not immediately evident that your client might be lying about that, or perhaps that is genuinely the way that they feel is what happened during the relationship in terms of those contributions as well. So it's something probably a little bit more underrated in terms of deception than perhaps some of those other examples.

SPEAKER_00 16:26

I I would agree with you. I thought, especially um considering at what stage of the matter it's happened, it's probably very common for a minimization of contributions on all fronts to happen early in proceedings. If that is a continued narrative that you've tried to challenge challenge your client on and you do believe there is deception about that, and it's now made its way to filed evidence, which I think happened in this instance, then it becomes more serious. The last example from our team members was I had another client who said the other party controlled their spending. She felt she couldn't buy anything during the relationship. But when we gained access to the credit card, there was some big ticket uh purchases that made the suggestion that uh she had limited spending not true.

SPEAKER_01 17:21

That's an interesting one. Because you you think that again that subjective perception of she probably she might not have genuinely thought she was spending that much, but when actually looking at expenditure, there was quite significant expenditure. Um but she could have felt controlled in that situation, even though a reasonable person having a lawyer look at that, they're thinking this might not be as big of an issue as what this person has come to me to say.

SPEAKER_00 17:52

Yes, I would think this is probably, depending on the severity, a low or a median um category in terms of certainly how common this um how commonly this pops up. There is always a situation where you're presented with your client's financial disclosure and find some type of transaction that you're unaware of. It just happens. Um happens a lot. Um so I think Jenna, you had an example that was pretty outlandish from practice.

SPEAKER_01 18:22

I I did, and this this is quite an interesting example, and I have hope no one has experienced anything like this before. But I'm I'm be very interested to hear if if anyone has. Um I had an initial consultation with the client we represented, the father or the husband in the matter. We I believe we sent him a cost agreement. I don't know if he actually had signed the cost agreement, but some weeks later we received a call from his, from the wife, the mother in this matter, so his ex-partner. And she said that she'd received a letter from our firm about the matter. And we were confused because we hadn't sent any correspondence to her about the matter. So we actually asked her to she she forwarded it to us so we could actually see what the letter was. And it was a letter that was on our letterhead and signed off using my first name, but then the surname of my paraleg. So it actually mixed up the names of two people within the firm to sign off this letter. And we had to tell her that this obviously hadn't come from us. She thought it was legitimate, and it was a very, very awkward situation. And it's something that we obviously had to talk to the client about, the person who we did have the initial meeting with. But it's that's such a dishonest situation. And she had thought that we had genuinely sent her a letter. I think it was in relation to parenting arrangements and proposed time. And she was genuinely concerned about the the contents of the letter, and that's why she'd contacted us.

SPEAKER_00 20:05

I I couldn't believe that example because I guess I can't imagine where that lie would take that client. Eventually the other party will be responding to your office, which is exactly what happened. Yeah, yes. So, in this situation where a lot of our listeners probably can relate to many of these examples or some of these examples, the question then becomes when to stop acting. Um, and I've made some points here as to what my thoughts are on when uh a client retainer should be stopped, and then we'll go into what the practical considerations and the ethical obligations around that are. So, in terms of when to stop acting for a particular client, it's there's a few considerations. Um, it's firstly whether the client has given you instructions that you cannot carry out without misleading the court. If you have, for instance, discovered a previous misrepresentation made to the court that was false and the client refuses to correct it once you've um alerted them to it. Thirdly, if your client is asking you to present evidence you believe is fabricated. Fourthly, a complete breakdown of trust, which is probably a more common one, so you no longer have confidence that anything they tell you is truthful. And ultimately the overarching test for yourself considering whether to make this termination of a retainer is not about whether you believe the client, but whether you can continue to act without compromising your professional obligations. So let's talk about what those obligations are. Under the Australian Solicitor's Conduct Rules, Rule 13, a solicitor has with designated responsibility for the matter must ensure completion of the legal services unless there is one of the recognised bases for termination. These include, firstly, if the client agrees to the termination, secondly, if the client decides. Charges the law practice. Thirdly, and we'll focus on this one in a moment, the law practice terminates for just cause on reasonable notice. So we'll talk about what just cause and reasonable notice means. And fourthly, the engagement ends by operation of law. So accordingly, if the solicitor is initiating termination, the key ethical question here really is whether they have a just cause and whether they've given reasonable notice. So what is a just cause? A just cause may include persistent failure to provide instructions by that client, a failure to pay the costs after appropriate warnings given to the client. Thirdly, a loss of confidence, such as competent representation, such that competent representation is no longer possible, a conflict of interest, an instruction to act unlawfully, dishonestly, or unethically, a refusal to accept advice in a way that exposes the solicitor to unacceptable professional risk, and conduct by the client that makes the solicitor-client relationship untenable. So, particularly on the last point, that could create a whole range of situations. In terms of the lawyer's ultimate ethical duty, a terminating solicitor must continue to comply with the fundamental duties of the Australian Solicitor's Conduct Rules, Rule Three and Four. These include, firstly, the paramount duty to the court and the administration of justice, which we mentioned at the start of this episode, which is a well-known duty. Secondly, the duty to act in the client's best interests while the retainer continues. Thirdly, the duty to be honest and courteous in all dealings. Fourthly, the duty to deliver legal services competently, diligently, and as promptly as reasonably possible. Fourthly, the duty to avoid compromising integrity and professional independence. And a point that I want to make here, the decision to terminate can't be used as a tactical means for the solicitor to avoid professional embarrassment or to avoid a difficult situation. We know that practice will present difficult situations for the solicitor. So there needs to be a proper ground for terminating the retainer. And another rule that I think is important for our listeners to keep in mind is their list Australian Solicitor's Conduct Rule Rule 9, which prohibits disclosure of confidential information acquired during the engagement with a client, except in limited circumstances, such as whether disclosure is authorized, required by law, made for the purposes of obtaining ethical advice or necessary to prevent imminent serious physical harm. What that rule means is when notifying the other side or the other court of your termination of a retainer with a client, which happens often in correspondence or in oral submissions given to the court, the solicitor should generally avoid disclosing the reasons for the withdrawal. It's usually sufficient to just state that the solicitor no longer acts and has filed a notice of ceasing to act, which in practice I did observe practitioners make an oral application to withdraw from matters and actually provide reasons as to why they're withdrawing. Have you experienced that as well?

SPEAKER_01 25:26

I haven't seen it happen by other practitioners in court, but I can understand as to why they may feel the need to provide a reason or to justify the reason as to why they're no longer acting.

SPEAKER_00 25:37

Yes. They probably feel that there's that element of letting the client down or letting the court down in, you know, now presenting the court with what is a self-represented litigant potentially. But certainly that rule is something that solicitors need to keep in mind. There is no reason to disclose what the reason for termination is. If the proceedings are on foot, another really helpful rule is the Federal Circuit and Family Court rule, Rule 3.10, which is in relation to the process of terminating a retainer. So first, the solicitor, there's four steps. First, the solicitor has to serve the client with a notice of ceasing to act in the approved form, together with a blank notice of address for service to give the client an opportunity to complete that form and file it with the court. Second, the solicitor needs to wait at least seven days before serving, after serve, sorry, after serving the client before they file the notice of ceasing to act, which is the third step. So no filing the notice of ceasing to act with the court having waited on those seven days. And fourth, after filing, serve the sealed notice on the client and on the other parties. A critical family law obligation is that a lawyer must not file this notice of ceasing to act too soon before a court event. And there is a case that we'll link in our short show notes of Barber and Chalk, a 2024 case, where a solicitor filed this notice at 403. There's a specific timing in the judgment, 403 a.m. the day before a listed hearing, and that solicitor didn't appear in the morning of the hearing. Obviously, unsurprisingly, the solicitor was referred to the Legal Services Commissioner for failing to give at least 14 days, which is what the rules require. And certainly even on 14 days, it's not much notice.

SPEAKER_01 27:35

No. What was the justification for not appearing or not being able to appear?

SPEAKER_00 27:40

It wasn't disclosed in the judgment. Um, but I'm sure if we read the Legal Services Commissioner judgment, um there probably is more detail as to why this has occurred. But it's certainly appalling professional behavior. Yeah. Um to make that termination in the early hours of the morning. The other thing that I found in practice that solicitors get criticized about, and I'll be quite brief in these reasons for criticism of solicitors, is that essentially as soon as a solicitor serves a client with a notice of ceasing to act, they almost deem that the matter is over and the obligations are over. And what I mean by that is there is an ongoing obligation that until determination is actually effective, the solicitor needs to continue advising the client of upcoming court dates and deadlines, informing the client of any imminent obligations to have, for instance, disclosure or any affidavit filing, subpoena compliance, any valuation issues, any expert evidence they need to attend to. So any requirements the court the client needs to think about, and essentially avoiding abandoning the abandoning the client at a critical stage.

unknown 28:57

Yeah. Yeah.

SPEAKER_01 28:59

Thank you, Eleanor. It was very interesting to hear from you the examples initially that particularly other practitioners that we work with have experienced in practice, and to know that these issues do come up probably more than what we would like some of the time, but it's probably not news to any family law practitioners hearing this, and they're probably thinking of quite a few examples that they could provide dealing with these types of situations, but then also helping lawyers understand their ethical obligations and how they can appropriately manage those situations and when they should continue to act or not continue to act and the appropriate measures to take to cease to act as well. So thank you.

SPEAKER_00 29:44

Thanks, Jenna.

SPEAKER_01 29:45

We hope you have enjoyed the first season of this week in Family Law. We certainly have. As always, if you have any questions or feedback, please reach out to us on YouTube, TikTok, or Instagram, or please email us. We have prepared some bonus episodes which will be released during the break, and we'll be back for season two in August. Thanks for listening.