Much of the news today has concentrated on the complaints made by clients to the Legal Ombudsman about the level of costs in a divorce. The full report is an interesting read (yes, really, have a look!) at
http://www.legalombudsman.org.uk/downloads/documents/publications/The-price-of-separation-LeO-report.pdf
The aspect of the report that has generated most interest is the suggestion that lawyers are deliberately encouraging clients to take a hostile and aggressive approach to their opposing partner, in order to rack up legal costs in a time of unprecedented recession.
While there might be a few practitioners out there who might take this approach, in reality most family solicitors have a responsible approach to litigation and try to ensure that cases are settled at the earliest stage. Solicitors who are members of Resolution are bound by a code of conduct which requires them to:
Conduct matters in a constructive and non-confrontational way
Avoid use of inflammatory language both written and spoken
Retain professional objectivity and respect for everyone involved
Take into account the long term consequences of actions and communications as well as the short term implications
Encourage clients to put the best interests of the children first
Emphasise to clients the importance of being open and honest in all dealings
Make clients aware of the benefits of behaving in a civilised way
Keep financial and children issues separate
Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional
Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and
court proceedings
Abide by the Resolution Guides to Good Practice
www.resolution.org.uk
Reputable and responsible family solicitors don’t want to develop a reputation for running off to court at the earliest opportunity, if the matter can be resolved by taking a sensible and cost effective approach. District Judges and professional colleagues find aggressive solicitors frustrating to deal with; to have an unnecessarily litigious reputation really does not help in family cases. Not only does the client end up feeling railroaded into court, but the costs come out of what is a limited pot of matrimonial assets. Such a client is unlikely to recommend that solicitor to others.
In addition, the emotional impact upon the family as a whole can be disastrous and long term.
Those solicitors who want to establish a reputation for integrity and trust in the local community will work towards helping people manage a family crisis in the most responsible way. Most solicitors are normal people, living with a normal world, and have a realistic view as to the value of money. They will try to resolve cases so as to preserve the assets for the family in general.
It has to be said, however, that there are some clients who are not easy to deal with. They are going through time of great emotional trauma and are unwilling to listen to professional advice; and those cases do often end up with a fully contested and expensive hearing. This is also increasingly the case acting against people who represent themselves. One needs only to consider the level of hostility shown in some current high publicity cases to understand how some disputes cannot be resolved by sensible solicitors. The parties themselves have very different agendas; it isn’t primarily about the money, it is about revenge, hurt feelings and humiliation, and those cases can end up in a contested and hugely expensive court hearing . If the opposing ex – partner, or the client is dead set upon going to go to court, against all the advice of their legal team, and with full knowledge of the level of legal costs and risk, that is their decision and so long as they have been fully advised of the costs and the risk of not ending up with what they want, there can be no valid complaint.
As against that, there are some cases which do have to be sorted out in court, since there is no possibility of negotiating a sensible solution. The ex- spouse might not have the benefit of legal advice, and might be operating without any understanding of matrimonial law. Or, the case might be extremely complex, with tricky issues of fact or law, that a Judge needs to decide. Or, the opponent might be taking such an unreasonable line, that there is no prospect of sorting matters out amicably without seriously prejudicing the client’s interests.
In those cases, it is vital that the client is kept fully informed all the way through, of the level of legal costs already incurred, and is given a realistic estimate of the costs to the end of the case. This is harder than one might think, since litigation is a moving target, and issues suddenly arise that have not been foreseen and need investigating. In those situations a solicitor is in a professional dilemma, since not to pursue some avenues can lead to a complaint of professional negligence, but to spend time on the issue will of necessity increase the legal cost. Again, if the client is kept informed of all developments, the client feels much more in control of the situation and can make informed and sensible decisions.
Ultimately, no reputable solicitor wants to have any complaint made about the level of service they provide, and in order to ensure that the client will recommend that solicitor, a relationship has to be maintained of mutual trust based upon full information right to the end of the case.
If you would like some tips on how to keep your costs as low as possible, take a look at my blog Divorce Costs : how to keep them down!
28.2.2013