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Posts Tagged ‘professional conduct’

No surprise that the Law Society has picked up on the existence of the ‘Solicitors from Hell’ website, which it says is ‘not a credible source of reliable information about solicitors’. The only surprise is how its taken this long, but apparently as a result of some recent media attention (none that I have seen) the Law Society is now recommending that individual firms referred to on that website should consider whether or not they have grounds to pursue an action for defamation.

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The Law Society is also seeking counsel’s opinion as to whether the site’s modus operandi – removing references to firms in exchange for payment – amounts to extortion.

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I sense there will be more on this story in due course…

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I had a particularly taxing day at court recently. My opponent solicitor and I did not – ahem – gel. My attempts to engage in negotiation met with much dramatic huffing and flinging about of the word ‘nonsense’, escalating to swearing and door slamming of a most juvenile kind. You know constructive dialogue is at an end when your professional conduct is impugned simply for disagreeing with the other side’s position. And when I’ve volunteered to draft an order that by rights should have been drafted by the other side, criticising my handwriting is likely to result in a biro-in-eyeball incident (I counted to ten, the urge passed). He didn’t do his client any favours – although she probably thinks he put on a grand performance – he was so busy with the amateur dramatics and bullyboy tactics that he completely failed to appreciate the significance of the information I was trying to give him.

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But most lawyers do at least maintain a certain sense of decorum, and we can agree to disagree on our client’s respective positions, and operate courteously even in the face of the most divergent of instructions. I cite as one example the case of Arkell v Pressdram. Brilliant.

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One of the first things we are taught in bar school is that our job is to ‘promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person’ (pa 303). Hand in hand with that duty goes the overriding duty to assist the court and not to mislead it either knowingly or recklessly (pa 302).

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But how does that duty to fearlessly defend the client and her interests operate in cases involving children? I have often had it suggested to me that my primary duty is to the child(ren) in a case, but in fact that is not strictly correct. So what is the position?

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Paragraph 302 and 303 of the code of conduct continue to apply and to govern what we do when representing a party (whether that be a parent, a spouse, a child, a local authority or another relative). In addition to the duties mentioned above those paragraphs also state that:

  • as between professional and lay client (solicitor and ‘punter’ if you like) the primary duty is to the lay client (‘punter’), and
  • that in publically funded cases there is also a duty to the Legal Services Commission (which is essentially to inform the LSC if a client for reasons of merit or means is no longer entitled to the benefit of public funding. You can read those parts of the code of conduct in full here.

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Although the Children Act 1989 governs much of what the family courts do each day – in particular the principle enshrined in s1 of that act that the welfare of the child is paramount – it is important to remember that it is judges not barristers that are bound by the Children Act – our behaviour is regulated by an ethical code, it is our advice to a client that is circumscribed by the law.

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There are other pieces of guidance which apply specifically to family work: for example the guidance note: Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings which can be found here or the guidance note on Illegally Obtained Evidence in Civil and Family Proceedings which can be found here.  The most important principle which can be drawn from the former is that there is a duty of full and frank disclosure upon the parties and their legal representatives in all matters involving children, as of course is also the case in relation to ancillary relief matters. As rightly identified in that guidance note there is a general ‘practice in which all matters concerning issues in family law cases are routinely disclosed, the client being advised that there is no possibility of preventing disclosure even of matters which would seriously undermine the case’. The only exception in relation to that is where legal professional privelege applies (broadly communications between lawyer and client).

Plainly the enhanced duties of disclosure which have emerged in family law arise in the main from the need to ensure the court is in a position to properly assess and ensure the welfare of the children affected by his decision, regardless of the position adopted by the respective parties. Counsel must continue to fearlessly defend his client and set forth his position but she must do it on the basis of full and frank disclosure. The rule is so important that if a client refuses to give consent for the disclosure of relevant material counsel must withdraw and cannot continue to act, not because of any duty to the child, but because it would be a breach of the duty owed to the court.

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Of course on a practical level one is usually working towards the welfare of the children – whatever my client’s instructions are they are almost always given with the genuine belief that they are in the best interests of the children. The reason we are at court in most cases is precisely because the parties differ frequently and significantly about what is and is not in the best interests of the children – there is a common purpose if not agreement about how to achieve that purpose. Even on days when it does not feel as if we are working towards the welfare of a child because the position I am being instructed to take on behalf of a client is so wrongheaded, it is my job along with my opponent to put forward the opposing viewpoints so that the judge can make a good decision.

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So both in terms of gently suggesting to a client why it is that the position she is putting forward might not be the best solution for the child (have you thought about this…do you think Billy might find it easier if such and such happened instead?), or in terms of trying to explain to a litigant in person or an opposing lawyer why the position we are putting forwards is welfare driven (no, its not because she wants to inconvenience you for the sake of it, its because a six hour car journey for a child is a bit much all in one day), we are – indirectly – promoting the welfare of the child.

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Again, in terms of advising the client of the prospects of success and trying to promote an agreed outcome and reduce conflict we are indirectly promoting the welfare of the child. When we deal with directions and case management so that a case can proceed smoothly and swiftly to a conclusion with the right evidence and without unecessary delay we are indirectly promoting the welfare of the child.

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And in terms of setting out clearly and articulately for the judge what the options are and why one may be better than another – ensuring that both parents are equally able to explain their concerns and their wishes, we are indirectly promoting the welfare of the child.

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So no, we don’t directly owe a duty to the child (unless of course we represent the child). But in ‘fearlessly defending’ our client whilst also complying with our duty to assist the court we are part of the process that is designed to promote their welfare.

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And although the phrase ‘fearlessly defend’ is a peculiar, perhaps archaic and awkward phrase to find in the field of family law, that conjures up imagery of battles and conflict, what is really signifies is that assisting the court also means not being afraid to say to the Judge ‘No – that is wrong’. We say it politely ‘with respect’ (almost always), but we say it nonetheless.

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NB: This system falls down where there is not equality of arms, so for example where a litigant in person finds it hard to articulate their position through intimidation or lack of oral ability. A judge will usually try to ensure that the balance is struck fairly by assisting a LiP, and the courts are increasingly willing to allow a McKenzie Friend to assist a LiP. It is also clear that lawyers owe a duty of fairness to a Litigant in Person, although this is not prescribed in the code of conduct it is in my view a part and parcel of the overriding duty to the court. Nonetheless, as the numbers of LiPs increase and there is more pressure on court time and significant downward pressure on counsel’s fees in publicly funded cases, the likelihood of the system becoming unbalanced in individual cases increases. The system currently relies heavily upon the assistance of representatives to the court, and in the years ahead this may need to be adjusted or recalibrated.

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I noticed the full page advert on the front inside cover of last month’s counsel magazine and raised an eyebrow. It was a ‘desperately seeking pupillage’ advert from an individual. Determined, I thought. Creative. And pretty cringeworthy. But the boundless entertainment that Counsel provides no doubt drew me onwards and I passed over it without much more thought.

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But it seems it has caused the raising of more important eyebrows than mine because a whole page is devoted to this little whoopsy in this month’s Counsel. The Bar Standards Board has issued a statement about why such adverts are ‘out of line’ with the BSB’s pupillage advertising requirements’ on equal opportunities grounds. I take their point which is made also in a lengthy letter from a disgruntled pupillage seeker (who has rather ironically managed by dint of this letter’s publication to demonstrate his own articulacy and dogged determination and hence obtain a free advert for his own suitability for an offer of pupillage) – all pupillages must be advertised and all applications must go through the advertised route.

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But what I really want to know is how on earth this one slipped through the net? In fact I know how this slipped through the net, although the Editorial Board of Counsel is made up of members of the Bar, no doubt advertising and the revenue generated from it are very much the domain of Lexis, the commercial enterprise who are contracted to publish this magazine and to make it viable and presumably profitable. No doubt questions of the regulation of pupillages were not at the forefront of the advertising bods at Lexis.

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So what I really really want to know is – for the facilitating the public destruction of this young man’s self-respect by the publication of the advert in the first place, and no doubt for further reducing his prospects of securing a pupillage via the publication of the BSB statement and associated letter (which at least insinuates that he has improperly attempted to gain an advantage over his fellow pupillage seekers) – how much did Counsel magazine charge?

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It may have been naive or unjustifiably optimistic to think such an advert would miraculously produce results (okay it was definitely naive and over-optimistic), but he should never have been allowed to put himself in this position by the Bar’s own magazine. I hope Counsel magazine has apologised to the poor bloke and refunded his money.

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Oh how true…This post from the Maryland Divorce Legal Crier blog is no less relevant for being from across the pond. It paints an all too familiar picture of the cringeworthy correspondence files I often get sent with my briefs. It makes me want to weep! Its easy enough to get drawn into a pointless bun fight but really guys – get a grip!!

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District Judge Gerlis has recently written a piece for The Times setting out his ten reasons why representing yourself in a divorce might not be the best idea. No doubt inspired by Heather Mills’ decision to run her own case, I think we’d all agree that where such large sums of money are at stake its probably a false economy to skimp on the legal team (although of course we don’t in fact know whether it was she or her former solicitors who made the decision that it was time to part ways, and in reality the reason behind the decision was likely to have been for reasons other than the financial and possibly due to a breakdown in relations between Ms Mills and her lawyers).

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Whilst I don’t disagree with the general proposition that its usually best to get yourself some representation, I’d like to approach the issue of litigants in person from a different perspective. Clearly there are all sorts of reasons why it is often better to be represented in court, rather than making a bad fist of it yourself. And of course far be it from me to suggest that we barristers are an unecessary expense. We are of course excellent value for money (ask my bank manager or my husband, who no doubt thinks we offer far too much value for far too little money)!

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In contrast with the learned district judge, I don’t think its all doom and gloom if you can’t afford representation or if you decide to go it alone. And I also don’t think that all judges would recommend the expense of a lawyer for all parties in all divorce cases.

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i am watching with dismay my declining hit stats on this blog, no doubt somewhat connected to my almost complete failure to post anything newsworthy or interesting in the last several weeks (or longer if i’m honest)…the fact is that sometimes the day to day to-ing and fro-ing at the family bar and the pressures of our own real family lives conspire to push blog-posting down the to-do list…

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this week for example i am wrestling with the questions of whether or not an application to transfer my increasingly complex care case to the high court is sheer lunacy or utter brilliance; of how and when i am going to fit in preparation for everything next week when the papers are variously a) not yet available, b) utterly unintelligible and c) too ginormouse to carry home to prepare and when I am up to my eyeballs with pre-birth decorating and with long arranged guests coming on Saturday to sleep in the not yet decorated bedroom; and of how to avoid professional misconduct when I find myself listed simultaneously for two important, oft-adjourned, part-heard final hearings neither of which I can sensibly abandon…particularly when one is pro-bono and my disappearance will leave the client totally stuffed. and when an adjournment of either will cause even more problems when i disappear on maternity leave. its not for want of being careful with my diary either. the clerks despair of my risk-averse strategy to double-booking, they now know not to book me in for more than one hearing a day unless they have checked with me first, and i in my turn have calculated train times between courts and worst case scenarios. today’s shenanigans however have been entirely unavoidable but are adding seriously to my stress levels.

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and in between all of this timetabling chaos my maternity leave is looming ever larger (as are certain parts of my anatomy) and i am beginning to be struck with fear about all the things i have to do with other people’s family matters before turning to my own. and as if to remind me of time ticking away the little blighter was kicking me in unmentionable places all the way through this mornings judicial lambast. some things are more important than being shouted at by a judge, it reminded me…as indeed they are.

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and so i am taking a breather a moment over my lunch and the obligatory pint of milk to jot this down, before launching back into the craziness…i am not sure if i am able to take comfort from the knowledge that whilst cases adjourn, a due date is pretty much a fixture. i suspect i will simply be swapping one kind of frantic existence for another (both equally unaffected by my obsessive planning and urge to control) at least until i return from my maternity leave…

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