Picture the scene. I get a phone call from a prospective new client who wants to instruct me about a divorce. She tells me that she and her husband are very amicable and want to sort things out by agreement. I take some basic details from her and arrange a time when we can meet . “Great”, she says, “We’ll see you at 3 pm on Friday.”
Immediately alarm bells begin to ring inside my head. “Er” I reply, “for the avoidance of doubt, I should make it clear that I can only act for one of you.” I then explain that even though they are amicable and just want a solicitor to advise and sort out the paperwork for the divorce, I cannot not act for both of them.
“Oh,” she says. “I’ll call you back.” She never does.
I have lost count of the the number of times I have had this conversation. It is not unusual for solicitors’ clients to be suffering from enormous misconceptions about how solicitors work. This is just one of them, but there are a number of others too.
1. That solicitors can act for both sides in a divorce
This is not allowed. Even where the husband and the wife have reached an agreement between them, it is not possible for the same solicitor to act for both of them. People sometime find this difficult to understand; if everything is agreed why can’t the solicitor act for them both? The reason is that there is a conflict of interest between the husband and the wife which makes it impossible; even a potential rather than an actual conflict renders it impossible. It might be that when advising or drafting the order, the solicitor needs to advise one party that the agreement is not in their best interests. If the solicitor is acting for both of them, which party would he advise? He cannot advise both.
Acting for both sides in any dispute is simply not allowed. I have on occasion come across cases where a solicitor has advised both sides together (often because he or she is dabbling in family law). This spectacularly unwise of them and frankly they should know better. I have also come across unqualified and unregulated “lawyers” who try to do this; their actions are dubious at best and possibly even illegal. If someone holds themselves out to be a solicitor when they are not, that is a criminal offence. Sometimes those adviser’s clients are under the false impression that the advisor is a solicitor.
2. Solicitors will lie on behalf of their clients.
This is the “lawyer = liar” argument. It is totally wrong. Solicitors will not lie on behalf of their clients. To do so would be professional misconduct. On occasions, I have had clients who were startled to hear from me that I was not going to lie to their ex’s solicitor or to the court in order to advance their case. I have to explain to those clients that a solicitor is an Officer of the Court and as such is not permitted to mislead the court either deliberately or by omission.
A common challenge made to criminal solicitors is “How can you act for someone you know is guilty?” The answer to that is that if a solicitor knows that the client is guilty (for example, because the client has admitted it to him or the solicitor witnessed him commit the crime), he cannot act for the client so the client decides to plead not guilty. The solicitor has to advise the client to plead guilty or find a new solicitor. However, merely suspecting that the client is guilty is not enough to bar him from acting.
Even if lying was allowed, it’s a bad idea in family cases. All it does is cause suspicion to grow which makes it difficult to negotiate.
3. Solicitors always want to go to court.
Some people worry that if they “lawyer up”, they will have to litigate their dispute through the court. Most family solicitors are members of Resolution and will be aware of the advantages of negotiating, collaborative process, mediation or arbitration as well as court proceedings. Some people need to use the court, but most do not.
4. Solicitor will make it worse.
Actually a good solicitor will improve the chances of a successfully negotiated agreement which meets everyone’s needs that leaves the couple feeling that fairness has been achieved.
5. Confidentiality
Clients sometimes do not understand a solicitor’s duty of confidentiality. Even judges forget this sometimes. A judge once demanded that I disclose the contents of a “without prejudice” offer letter that I had sent to the wife’s solicitors. (Without prejudice correspondence is deemed to be off the record). I refused to tell him what was in it. He glared at me. I glared back at him. He harrumphed and changed the subject.
However, there are exceptions to the rule. Child protection, anti-money laundering and anti-terrorist legislation is an exception to this rule, so there are limited exceptions when a solicitor might have to report a client’s misconduct to the authorities. There are also other things that have to be disclosed in a case, or else the solicitor has to decline to act any further, or else he would be guilty of misleading the court by omission. Thankfully this is rare.
6. Solicitors are all rich.
Actually the average income for a solicitor is £41,178 a year. Train drivers earn more than this (£48,000, if you’re asking). When you hear this it makes you wonder if all the stress of working in the law is worth it. Obviously some solicitors will earn a lot more, especially if they are partners in large law firms. There was some research recently which said that the average salary was about £100,000 for a solicitor, but frankly that is twaddle.
(Before you ask, I do OK, but I’m not going to tell you how much I earn.)
23rd May 2015