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Abstract

This Article explores the representation of those accused of committing acts of intimate partner violence (IPV) and domestic violence (DV) in the civil context and the professional duties that flow from the lawyer-client relationship. Resolving ethical questions that arise in the representation of the accused demands an understanding of how the two prevailing responses to intimate partner violence—criminal prosecution and civil protection—differ in purpose and outcome. Although ethical practice in these two distinct areas requires that the lawyer observe diverse legal protocols, one must also acknowledge the co-occurrence of criminal prosecution and civil protection that arises in cases involving intimate partner violence.

This Article examines the generally accepted principle that the lawyer, as a fiduciary, owes a duty of loyalty and fidelity to the client, while underscoring the magnitude and range of the duty of loyalty, as well as the limits imposed upon it by other ethical duties are, at times, difficult to reconcile. Throughout history, legal experts have debated the role of the lawyer as both representative of the client and officer of the legal system. This historical debate reveals fundamentally different ways in which an attorney might view their role. It is not difficult to understand why a great divergence in the way lawyers view their duty to the client continues to exist given that the law on lawyering suggests an attorney has several different functions as a legal professional. For the lawyer whose primary obligation involves acting as a client representative, managing these competing duties is no easy task.

This Article considers the special requirements that a lawyer must observe in civil protection from abuse cases when representing the accused, as well as how civil and criminal representation are dissimilar in important respects. The subject of the Article is the representation of a client, in a civil case, who has committed an act or acts of IPV, not the innocent client. The examination is limited to circumstances in which there is no legal justification for the act of abuse. Additionally, this Article narrows the focus to representation involving knowledge on the part of the attorney that the client has committed an act of IPV which forms the basis for a petition for civil protection.

Although there are many rules that regulate the practice of law, this Article focuses on a select few guidelines that control legal practice when a lawyer represents the accused in a civil case. In addition, this Article applies these guidelines to particularized civil practice settings, such as protection from abuse matters and how the lawyer’s ethical duties in civil cases differ from the representation of the accused in the criminal context. Moreover, the Article provides practical solutions and guidance to practicing lawyers who encounter these ethical dilemmas while representing the accused in civil cases involving IPV.

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