When parties are engaged in litigating what are often deeply personal and contentious family law disputes, it is imperative that lawyers representing the parties refrain from becoming overly involved in the lives of their clients. In the fascinating case of Kasapoglu v Kasapoglu, 2020 BCSC 2087, Master Cameron of the British Columbia Supreme Court heard an application alleging just that. Although the Court’s order in this case was limited to barring counsel for one of the parties from staying overnight in the family home, this case is illustrative of the dangers of lawyers becoming too deeply entangled with their clients.
The parties to the dispute, Angie and Emin Kasapoglu, are both Turkish citizens who married in 2010. Shortly thereafter, the parties moved to Canada and had a child together, M. The parties separated in 2018 and are currently litigating a high-conflict separation before the BC Supreme Court. Angie (the wife and claimant) retained a Ms. Anna Perry as counsel in the dispute. The solicitor-client relationship between Angie and Ms. Perry grew into a more personal relationship, with Perry becoming a “close friend” and “source of support” for Angie. Over the course of the proceedings, Perry withdrew from representing Angie, but remained in her former client’s life, staying overnight in the former family home, and even offering to supervise Angie’s parenting time with M. The respondent husband, Emin, applied to the Court for an order that Angie be prevented from bringing M into the presence of Perry, and that Perry no longer be permitted to stay overnight in the family home.
Under section 227 of the BC Family Law Act (the FLA), a court may make an order requiring a party in a family law dispute to do or not do anything in furtherance of the purposes listed in section 222 of the FLA. These purposes include:
- Facilitating the settlement of a family law dispute,
- Managing behaviors that might frustrate the resolution of a family law dispute, and
- Preventing the misuse of the court process.
Emin argued that Perry’s conduct increased the animosity and distrust between the parties, and was therefore contrary to the above purposes. Since neither side was able to produce any cases applying these sections of the FLA to comparable circumstances, the Court concluded that the overall purpose of a section 227 conduct order is to “reduce the friction and the tension between the parties and promote a resolution of matters.”
While the Court did not rely on any BC cases when deciding this issue, courts in Ontario have considered similar lawyer-client relationships in the family law context. In Windsor-Essex Children’s Aid Society v D.(B.), 2013 ONCJ 43, the Ontario Court of Justice held that, despite being well-intentioned, a lawyer could not act as counsel for his daughter in a child custody dispute, as his relationship with both the mother and the child “cloud[ed] his ability to give objective, disinterested and professional advice.” Similarly, the Ontario Court of Justice removed a lawyer who was romantically involved with their client in Kam v Hermanstyne, 2011 ONCJ 101, reasoning that even without evidence that the lawyer intended to mislead the court, “human nature being what it is, mischief may inevitably result [when there is a close relationship between the lawyer and the client.]” Additionally, rules of professional conduct applicable to lawyers strongly discourage any actions which give rise to conflicting interests. Rule 3.4-1 of the BC Law Society’s Code of Professional Conduct, for instance, creates a duty upon all lawyers to refrain or withdraw from acting for a client where there is a prohibited conflict of interest, such as when a lawyer’s close personal relationship with a client conflicts with that lawyer’s duty to provide “objective, disinterested professional advice to the client.”
Considering the above, the reader may be surprised to find that the Court was only prepared to give effect to a fraction of the requested relief:
- In deciding whether Perry should be barred from staying overnight in the family home, the Court noted Emin’s continuing attachment with the property, and agreed that, despite Perry no longer acting as counsel for Angie, his spouse’s former lawyer having access to his office and other private space would result in “continuing resentment and discord between the parties.” Noting that Perry had other family in the area with whom she could stay when visiting Angie, the Court ordered that Perry not reside overnight in the family home.
- In evaluating whether it was appropriate for Perry to supervise Angie’s parenting time with M, the Court found that while Perry’s intentions were “for the best,” upon more careful reflection, she would have “recognized she was not a suitable person to provide supervision after being counsel for the claimant for some considerable time in this high conflict family law case.” “Simply put,” the Court continued, “she would not be viewed as being neutral and objective as a parenting supervisor.”
- Despite granting the above, the Court declined to otherwise restrain Perry from spending time with Angie and M. The Court here found that, on all the evidence (including an expert report prepared for purposes of the underlying litigation), the time spent together was “beneficial” for all parties. Indeed, the Court said, Perry’s support for Angie in her personal struggles with sobriety was something that “ought to be encouraged.” In dealing with this question, it is possible that the Court was influenced by the important family law principle of “best interests of the child,” which Courts are directed to consider both in interpreting the provisions of the FLA, and in applying the rules of the BC Supreme Court to family law disputes.
Despite the outcome of this particular application, lawyers should take from this case the importance of avoiding close personal relationships with clients or relevant third parties where that relationship could in any way raise concerns about their ability to give objective and professional legal advice. First, the outcome may have been more serious had Perry not ceased to act for Angie by the time of the application. Based on cases such as Hermanstyne (above), an acting lawyer found lacking the ability to give disinterested, professional advice may be removed as counsel for the party. Second, in addition to the distinct possibility of a much stronger order being made in a comparable but less sympathetic case, the unnecessary time and money spent resisting such applications from opposing parties is antithetical to the goal of a speedy, efficient, and (reasonably) amicable resolution of the case on its merits. Finally, even if no finding of fact is ultimately made against them, lawyers must be alert to the possibility of significant reputational damage resulting from the public reporting of court applications, especially since the legal profession is one where a practitioner’s credibility and integrity are vital to continued professional success.
The moral of this story is this: whenever in any doubt, always keep a safe distance from clients, for the sake of all involved.