“He did everything he possibly could for me”: medical malpractice claimants’ experiences of lawyer–client relations

Lawyers are obliged to act in the interests of their clients, however, it is not clear how lawyers should do this in practice. Should lawyers follow their clients' instructions without deviation, should they actively manage their clients' expectations, or as many studies suggest, do lawyers place their own interests first? This paper examines how lawyers interact with medical malpractice claimants. It reveals that lawyers take a client-aligned approach, where lawyers acknowledge their client's goals, but do not necessarily do what the client says. We argue that this approach is made necessary by legal and organisational constraints which limit the ability of lawyers to produce the types of outcomes that their clients want.     

The Organization of lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law

Using data from personal interviews with 777 Chicago lawyers, constituting a random cross section of the urban bar, the authors estimate the relative volumes of effort devoted to each of several fields of law, analyze the degree to which practitioners specialize in fields or groups of fields, and examine the patterns of co-practice of the fields. They find that the total effort of the Chicago bar is about evenly divided between work for corporate clients and work for individual clients. They also suggest that, while relatively few lawyers are highly specialized to a particular doctrinal area of the law, most are specialized to the service of the needs of a particular type of client. Exploring possible implications of their findings, the authors speculate that lawyers who are specialized to clients rather than to substantive fields may lack the incentive to devote their resources to the rationalization of legal doctrine.     

The Stalking of Lawyers: A Survey Amongst Professionals in Milan

This is the first study focused on the stalking of lawyers. The authors hypothesized that these professionals are at risk of being stalked by their clients and that this stalking is ascribable to RECON type I.B. A random sample of lawyers was survived. 37.3% of 166 respondents revealed to have been stalked: not only by clients, but also by adversaries and colleagues. Data seem to confirm that the stalking of lawyers mainly belongs to RECON type I.B. Female lawyers were at greater risk than male lawyers. In family law cases, the professionals tended to be stalked by the former husbands of the lawyers' clients (p < 0.01). Several female lawyers—but no male lawyers—were threatened with harm to their family members (p < 0.05). Most of the stalking victims described psychological effects of being stalked. Who suffered physical aggression or repercussions on work was more likely to lodge a complaint (p < 0.01).     

An Interdisciplinary Case Management Protocol for Child Resistance or Refusal Dynamics†

High‐conflict parental separation cases associated with child's estrangement or contact refusal take an unusually large amount of court time and generate high emotional costs for parents and children. This paper reports on a study of a research‐based pilot project and protocol, called the Parenting Conflict Resolution (PCR), which is intended to reduce parental conflict, improve interparental communication, and support or restore the parent–child relationship. The protocol was developed at the Superior Court in Quebec City (Canada), and involves single judge case management, and lawyers' commitment to have the child's best interests as their primary consideration and to guide their clients to trust the process. The assigned judge and lawyers have the ongoing involvement of a mandated psychotherapist, taking a family systems approach with the case. The PCR also requires the parents to participate in a psycho‐educational, introspective group program to work on co‐parenting and communication skills. Ongoing communication between the professionals involved in the PCR is required to ensure cohesion and accountability. This pilot project was implemented with 10 high‐conflict families, 6 of which presented with the child's resistance or refusal to see one parent. A qualitative data study was undertaken into the experiences of all the participants. The most salient result is the resumption of parent–child contact in all six contact refusal cases. Discussion highlights key elements to successfully address these cases: (a) interdisciplinary program delivery, (b) systemic understanding of the contact problems, (c) focus on the child's best interest, (d) single judge assigned to the case, (e) lawyers' support of the parents' participation, and (f) psychotherapist reporting to the court.     

Do Not Make their Trauma Your Trauma: Coping with Burnout as a Family Law Attorney

In the field of family law, attorneys frequently expose themselves to highly emotional and traumatized clients. Litigation is by nature a high‐stress occupation, demanding a high level of intellectual and emotional engagement from the contesting lawyers. Adding the burden of inherently distressing content to litigation can impair a lawyer's functioning. The effects are often referred to as “secondary trauma.” This Note proposes that state bar associations should take a more active role in providing mental health support to prevent burnout in family law attorneys by (1) offering voluntary classes to educate attorneys about the dangers of, and ways to cope with, the burnout that comes with working with traumatized clients in family law and (2) organizing support groups among local family law communities.

Key Points for the Family Court Community:
• Claims against family law practitioners account for the third highest percentage of all malpractice claims against lawyers.
• Burnout is a serious problem for family law attorneys.
• Programs sponsored by state bar associations are available and need to be expanded.
• The American Bar Association's Model Rules require that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
• The unique nature of family law, centered on relationships and emotions, puts family law attorneys at a higher risk for experiencing the effects of secondary trauma than other areas of law.
• Lawyers at risk for secondary trauma can avoid its effects by educating themselves about such effects.

     

The advice lawyers give themselves: the Canadian Bar Association's campaign for timekeeping in the mid-twentieth century

This paper is a historical analysis of how the Canadian organized bar urged lawyers to adopt strict timekeeping practices and use time as the basis for their legal fees. The Canadian Bar Association's compilation of data on the legal profession in the late 1940s–the collection of ‘facts’, the ‘scientific’ nature of this collection–foreshadowed the way that the organized bar would couch its advocacy for the practice of timekeeping in the 1970s. The pioneering experts on law office management in Canada promised lawyers significant profit increases and gave minimal attention to the relationship between legal fees and client's interests.     

UNDERSTANDING CHILDREN'S RIGHTS: THEORY AND PRACTICE

This article discusses the meaning of children's rights in the context of the European Convention on Human Rights and the UN Convention on the Rights of the Child. Both place primary responsibility for the upbringing and education of children on their parents and families. The freedom of parents to bring up their children in their own way is an important component of a liberal democracy founded on respect for individual differences. So if parents believe in moderate corporal punishment as a means of educating their children in their own religious beliefs, is the state justified in banning such punishment either in school or in the home in order to protect the children's rights? This article discusses the children's rights which are protected by doing so.     

Why Listening to Children and Young People is Important in Family Justice

During the last 30 years, there has been a growing body of evidence indicating that children and young people often feel marginalized when their parents are making critical decisions that will shape their young lives, and they are calling for family justice professionals to hear their voices. This article explores the research evidence, examines the relevant theories about child development, and demonstrates how a focus on age‐related competency fails to take account of children's subjective meanings about their lives. The authors consider a model of participation first designed to understand adult participation in government and show how this can be usefully applied to understanding children's participation in family justice.     

Children Resisting Contact with a Parent Due to Abuse,Alienation, or Other Causes: Can a Proactive Role for Lawyers Contribute to Better Outcomes?

Lawyers have a significant role to play in cases where children are resisting contact with a parent, or the family appears to be going down that path, in the context of parental alienation, family violence or other factors. These cases pose great challenges for lawyers dealing with parents, as their clients are often anxiety‐ridden, angry, scared, and may have difficulty focussing on the long‐term interests of their children or themselves. A lawyer may be one of the first professionals encountered by the parents; lawyers for parents are advocates, but they are also in a position to provide wise counsel, to help triage the situation, provide practical advice, and early, helpful solutions. This article sets out practical suggestions for lawyers acting for parents. What can and should lawyers do to ensure they are part of the solution, not part of the problem? Lawyers need to be able to identify the potential problems and provide practical help to the family – whether they are acting for the “preferred” parent, the “rejected” parent, or the involved children.     

PARENTS AND DRUGS REVISITED: SOME FURTHER EVIDENCE IN SUPPORT OF SOCIAL LEARNING THEORY*

Social control and social learning theories suggest divergent relationships between attachment to parents and children's drug use when level of parent drug use is considered. Social control theory proposes a uniformly negative relationship between children's drug use and attachment to parents whereas social learning theory proposes that the relationship is affected by parental drug use. The relationship between attachment to parents and children's drug use was investigated for each of three groups of low, moderate, and high parental drug use through estimation of a latent variable structural model of attachment to family on children's tobacco, alcohol, and marijuana use. Results indicate that attachment to parents related inversely, but with different magnitudes, to children's drug use for youths whose parents use drugs at low or moderate levels. No significant relationship exists between attachment to family and children's drug use for youths whose parents are relatively high-level users. Neither ethnicity nor sex affected these findings. The implications of these results supporting social learning theory are discussed.     

Specialization and Prestige in the Legal Profession: The Structure of Deference

The process of specialization is now well advanced within the legal profession, and the specialties have acquired clearly varying levels of prestige among the practicing bar. What are the characteristics of the specialties, or of the lawyers who practice in them, that might account for these variations in prestige? In describing the prestige differences and several of the variables that might be thought to account for them, the authors analyze the results of a survey of a large random sample of Chicago lawyers. Among the findings are a strong relationship between prestige within the legal profession and the type of clients that the specialty serves, a substantial correlation between prestige and the degree of intellectual challenge presented by the subject matter of the specialty, and the perhaps surprising result that prestige is not significantly associated with the income earned by lawyers practicing in the specialty. The authors conclude that legal specialties that regularly confront personal suffering lose social standing as a result, that prestige within the profession is directly proportional to the degree to which the specialty facilitates the conduct of corporate enterprise, and that the varying prestige of the specialties is likely to affect the political and professional power of the lawyers who practice in them and to influence the patterns of recruitment of lawyers into law practice.     

‘Reasonable Offers’ As a Defence to Unfair Prejudice Petitions: Prescott v Potamianos

It is long established that a ‘reasonable offer’ for a petitioner's shares can defeat an unfair-prejudice petition. Lord Hoffmann gave guidance about such offers in O'Neill v Phillips. Now, in Prescott v Potamianos, the Court of Appeal has set out three factors that help to determine in general whether an offer is ‘reasonable’. Those factors are: the value offered; the likelihood of implementation; and the proximity to the unfairly prejudicial conduct. The Court's guidance is useful for lawyers and their clients, as well as being broadly favourable for petitioners. But the Court emphasised that the unfair-prejudice jurisdiction is based on fairness and so requires a considerable degree of flexibility. Such flexibility impairs the certainty that Lord Hoffmann was seeking to promote, and may create difficulties for parties making or receiving offers.     

Multijurisdictional practice and the health lawyer: will your practice benefit from the new ABA model rules of professional conduct?

At the end of the twentieth century, bar scholars and regulators were reexamining two traditionally improper aspects of legal practice. The first was the multidisciplinary practice of law, which would permit lawyers to offer accounting and other professional services to their clients, and allow lawyers to share fees with non-lawyers. The second was the multijurisdictional practice of law, which would permit a lawyer licensed in one jurisdiction to practice law in other jurisdiction in which he was not admitted to the bar. Enron and other corporate scandals deflated the movement towards multidisciplinary practice, but the movement to allow multijurisdictional practice bore some limited, yet important, results. This Article argues that the American Bar Association's new Model Rules 5.5 and 8.5, which broaden the ability of healthcare lawyers to practice outside of the states in which they are admitted, are a suitable accommodation to today's mode of practice, while still preserving the states' ability to regulate lawyers and protect clients.     

The impact of timing and frequency of parental criminal behaviour and risk factors on offspring offending

This paper explores mechanisms of intergenerational transmission of criminal behaviour by investigating specifically the timing and frequency of the parents' criminal behaviour while including risk factors for criminal behaviour. The results demonstrate a dose–response relationship: parents' number of criminal convictions is positively related to offspring's conviction rate. Furthermore, children whose parents had only been convicted before the child's birth have more convictions than those whose parents had never been convicted. Children whose parents had been convicted after the child's birth have more convictions than those whose parents had only been convicted before the child's birth, but this difference can be explained partly by the observation that the latter group had fewer risk factors for crime. When parental convictions at different ages were examined, children whose parents had been convicted between their 7th and 13th birthdays exhibit more criminal behaviour than children whose parents were convicted in other periods, but none of the differences were significant. There does not appear to be a sensitive period for the impact of parental criminal behaviour. The results demonstrate support for static as well as dynamic explanations of intergenerational transmission such as the transmission of a criminogenic environment and/or mediation through risk factors.     

Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited

A partial replication of Jack Katz's (1982 ) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty‐five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present‐day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.     

Visit Coaching: Building on Family Strengths to Meet Children's Needs

Visits between children in foster care and their families often do not build on family strengths or help them demonstrate they can meet their children's safety and developmental needs. Visits can alienate parents, children, and foster parents, and the parent's grief, anger, and preoccupation with complying with court‐ordered treatment often obscure their children's needs. Visit coaching is an innovative approach that can replace parenting classes and office‐based visits with hands‐on guidance for families in meeting their children's needs. The visit coach, who may be their caseworker or a variety of other trained individuals, helps parents take charge of visits and demonstrate more responsiveness to each child.     

Lawyers' perspectives on ‘what is court-connected mediation for?’

This article analyses the results of an empirical investigation into lawyers' perspectives of the goal of court-connected mediation in the Supreme Court of Tasmania, Australia. The findings of other empirical studies are drawn upon to contextualise the results. The data reveal a tendency for lawyers to emphasise settlement in accordance with the law as the main purpose of court-connected mediation. There was evidence that some lawyers maintain a competitive approach to court-connected mediation, seeking to ‘win’ for their clients with minimal regard to the other party's goals or to achieve outcomes that reflect a legal assessment of the case. However, where non-legal, satisfaction-related needs were met, many lawyers viewed such outcomes as particularly positive. A mixed range of views was revealed, with the common goals of an opportunity for settlement and a focus on law as a reference point. The findings contribute to knowledge about lawyers' understandings of ‘what is mediation for?’.     

In the Interests of Clients or Commerce? Legal Aid,Supply, Demand,and ‘Ethical Indeterminacy’ in Criminal Defence Work

As a professional, a lawyer's first duty is to serve the client's best interests, before simple monetary gain. In criminal defence work, this duty has been questioned in the debate about the causes of growth in legal aid spending: is it driven by lawyers (suppliers) inducing unnecessary demand for their services or are they merely responding to increased demand? Research reported here found clear evidence of a change in the handling of cases in response to new payment structures, though in ways unexpected by the policy's proponents. The paper develops the concept of ‘ethical indeterminacy’ as a way of understanding how defence lawyers seek to reconcile the interests of commerce and clients. Ethical indeterminacy suggests that where different courses of action could each be said to benefit the client, the lawyer will tend to advise the client to decide in the lawyer's own interests. Ethical indeterminacy is mediated by a range of competing conceptions of ‘quality’ and ‘need’. The paper goes on to question the very distinction between ‘supply’ and ‘demand’ in the provision of legal services.     

Back to school for parents: implementing responsible parenting agreements and orders in Western Australia

Managing student behaviour is a primary task of principals and teachers, but it is not their responsibility alone. Parents are also responsible for their children's behaviour inside and outside school. As primary educators and caregivers parents have a duty of care and are responsible for nurturing, disciplining and socializing their children. In the wake of growing concerns about the apparent increase in antisocial behaviour inside and outside schools, the Government of Western Australia is planning to introduce the use of responsible parenting agreements and orders, modelled largely on UK policy. The aim of responsible parenting agreements and orders is to provide a statutory mechanism for directing parents to take responsibility for their children. The goal is to reduce truancy, antisocial behaviour and juvenile crime and to improve children's socialization and school performance. The Children's Court will be given power to issue orders that impose certain requirements on parents regarding the upbringing and discipline of their children. The purpose of this article is to examine the Western Australian government's policy on responsible parenting agreements and orders and their use in the school context. The article first provides an introduction to the role of parents in the area of school discipline, followed by an analysis of the State Government's discussion paper Parental responsibility orders and an overview of the proposed legislation. The discussion then focuses on the application of responsible parenting agreements and orders within the school context as a strategy for engaging parents in improving school discipline.