ABSTRACT

It seems to be commonly understood that sometimes a family lawyer’s advocacy can go too far; however, absent disciplinary proceedings or a claim in negligence, it is not always easy to identify exactly what line a lawyer has crossed. A lawyer’s role, properly understood, is to pursue their client’s interests within the bounds of legality. In this paper, I examine the positivist conception of the bounds of legality in the context of family law. My examination includes consideration of adversarial and non-adversarial advocacy, how much resolve a lawyer can properly use as an advocate, and the means of a lawyer’s craft – both substantive and procedural tactics. In doing so, I provide a theoretical mapping of the bounds of legality, demonstrating that they are insufficient in family law. My aim is to provide the theoretical tools to help inform change to family law, and the law and professional rules governing lawyers.

摘要

人们似乎普遍认为，有时家庭律师的辩护可能会走得太远；然而，在没有纪律处分程序或疏忽索赔的情况下，要准确识别律师所跨越的界限并不总是那么容易。正确理解律师的角色是在合法范围内追求委托人的利益。在本文中，我研究了家庭法背景下合法性界限的实证主义概念。我的审查包括考虑对抗性和非对抗性辩护、律师作为辩护人可以适当运用多少决心，以及律师的技巧手段——实体策略和程序策略。在此过程中，我提供了合法性界限的理论映射，证明它们在家庭法中是不够的。