On occasions, I am contacted by a potential new client who tells me that he or she and his or her spouse are going to get divorced and that they are looking for legal advice. The choice of words that the new client uses (“we are looking for a solicitor” etc) may cause alarm bells to ring in my head. I have to make it clear that I can only advise one of them. I cannot under any circumstances give them both advice, nor will I agree to the new client’s spouse being present during any consultation. The last thing that I want to happen is for them to both turn up to the consultation and for me to have to turn one of them away.
Some people find this difficulty to understand. They tell me that they are amicable and have reached an agreement and they just need a solicitor to sort out the legalities for them. Surely, they ask, I can act for them both?
This is impossible. The reason for this is that there is a very clear conflict of interest involved in doing so. Solicitors are regulated by the Solicitors Regulation Authority and are bound the SRA Principles and the SRA Solicitors Code of Conduct. These mandatory rules oblige all solicitors to always act in good faith and do our best for each of our clients. If there is a conflict of interest (or even just a potential conflict of interest), we cannot act. Conflicts of interests are a complex and detailed subject and it is probably best to explain this by giving some examples.
Even if the couple have reached an agreement, when I look at the agreement it is entirely possible that my view might be that the deal is tipped too heavily in one party’s favour and therefore does not achieve fairness or meet their needs. I might also spot something of which one spouse needs to be made aware, but which the either spouse may not want them to know. The law is full of these sorts of things; for example:
• Where one party may be planning to remarry, but doing so will remove the right to make a financial claim against their ex because he or she will then have fallen into the so-called “remarriage trap”.
• Where one party may have a public sector pension or defined benefit pension, there is often a concern about whether the cash equivalent pension produced by the pensions fund represents its true value. One party may not want the other side to discover that a pension that they are keeping may actually be worth a great deal more and that therefore one side is receiving a larger share of the pension than is fair.
• In an unmarried couple case, the lack of discretion about how a court would divide the shares in a property may mean that an agreement between the parties may result in one party might be receiving significantly more or less than their legal entitlement.
There are many, many more examples of this that occur in family cases all of the time.
It is therefore impossible for a solicitor to act for both sides, not even as an honest broker. I have seen this tried on a few occasions. I recall one case where an agreement had been reached with the assistance of a single solicitor (who should have known better), who purported to act for them both. I was appalled. The deal would never be approved by the court, especially now that the husband had sought independent legal advice and realised that he was settling for far too little. It was tipped far too heavily in favour of my new client, the wife. Furthermore, quite aside from anything else, a separation agreement should involve both parties having independent legal advice as otherwise there is a danger of an appearance that it has been reached under duress. The original solicitor was dabbling in things that he clearly did not understand. He should never had done that and my client had to spend a great deal of money starting again from scratch, all the while no doubt feeling enormously disgruntled about the collapsed deal and how her husband would now get more than she had wanted to give him.
I also often have to explain to these clients that not only can I not act for both parties, I am also not prepared to allow the spouse to sit in on the consultation. There are all sorts of problems involved in doing that:
• The other spouse may not understand that I am not acting for him or her.
• I cannot talk freely in front of the other spouse because I may have to give my client advice that it might be better if the spouse did not hear.
• The spouse may attempt to intervene and to influence the client at the time that he or she receives my advice.
• If the spouse is abusive (whether physically, emotionally or psychologically), the client may feel intimidated and unable to speak openly to me about the issues in the case.
Some clients feel that this is all unnecessary and far too restrictive. Some people who are divorcing worry that involving a solicitor will create conflict where none exists. It is worth bearing in mind that just because I am acting for only one party and I have to give that client the best possible advice about what is in his or her best interests, that does not mean that that the client then has to follow that advice.
I can advise a client that he or she is settling for far less than they should seek from their ex, and the client can still decide that the agreement will go ahead. Ultimately, my client is the boss; as long as the client has received the advice that he or she needs, then they can decide to go ahead regardless. As long as their instructions do not require me to do anything that is unethical or illegal, I will follow their instructions.
After the consultation with the client, I am of course happy to deal with the spouse, but only at arm’s length. I would much rather that he or she instructed a solicitor with whom I could deal, as this avoids enormous problems and misunderstandings, but it is common nowadays to deal with a litigant in person (i.e. someone who represents himself or herself).
I am also not going to start been aggressive or combative with their spouse. I do my utmost to comply with the Resolution Code of Practice which compels Resolution members to deal with matters in a constructive manner. I also frequently recommend dispute resolution methods that are better than court proceedings. They are much more likely to ensure that where there is not yet an agreement, we try to find one in a way that allows the parties to do so in a dignified manner, that they both can feel achieves fairness, meets their needs and their children’s needs and allows them to move on afterwards without bitterness or hostility. These alternatives to court are:
(There are also other less used alternatives such as private Financial Dispute Resolution Appointments and Early Neutral Evaluations; these are best thought of as a kind of non-binding arbitration).
Mediator and arbitrators (many of whom are also solicitors) are neutral and won’t take sides. They can work with both parties, but they do not act for them or advise them. They are neutral. For example, if a mediator feels that one side needs some legal advice, the mediator will encourage the parties to seek legal advice (and it is usually a good idea to get legal advice from a solicitor throughout the mediation process anyway, especially in financial disputes).
There are some people who argue that it should be possible to act for both parties in a natural manner. For example, they might just draft a financial order reflecting an agreement, rather than giving any advice on it. As a solicitor, my view is that that is fraught with difficultly. What happens if there is a disagreement about the fine detail of an agreement? What happens if the agreement is unworkable? The idea that a lawyer could act as a kind of scrivener and just draft an agreement without any considerations of its fairness or workability has little support from practitioners in my experience.
22 June 2019
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