Mena Ruparel on the risks of representing both parties in a divorce and other potential conflicts
It is not unusual for solicitors to face extreme pressure from existing or prospective clients to act in a way that perhaps serves their best interests but could be contrary to the ethical principles by which we must all practice.
Very recently I read a blog by a family solicitor in which he described the pressure that he comes under from prospective divorcing clients who only want to engage one solicitor. This can of course cause problems of either actual or potential conflict of interests. Although separating couples can untangle their lives amicably, the role of a solicitor is to act in their client’s best interests. In any situation where one has multiple clients, there is the very real prospect of a conflict arising. Clients struggle to understand why their apparently amicable agreement might be subject to future problems, suspecting lawyers of wanting make money rather than act for the couple. For an experienced family lawyer it is all too clear that an apparently simple request to draft an order could be fraught with problems unless every aspect of the order has been discussed in detail. The response from the vast majority of practitioners would be to refuse all requests to act for both parties, many will agree that this is the best ethical decision.
In the same situation there is an innovative project being offered by barristers which purports to offer a service where the barrister does act for both parties. The code of conduct for barristers is different to that of solicitors but not so much that they can act for two parties where there is the possibility for real conflict. In the event that the barrister realises that a conflict has arisen, they must withdraw their services from both clients, unless one client is likely to consent to the barrister representing the other spouse. Even if this happens a barrister can only continue to represent one party if they can do so whilst maintaining the confidentiality of both parties. The potential for conflict is the same for the barrister as it is for the solicitor, the same potential for conflict to arise exists and if it occurs during the drafting process it could cause reputational damage which would be tricky to manage.
Unusually, the Solicitors Regulation Authority (SRA), issued guidance on acting for two parties in this situation in their question of ethics bulletin, August 2015. The question from a regulated solicitor asks whether as a solicitor mediator, they can draft a consent order for two parties who have resolved matters at mediation with that solicitor. Effectively, this seems to be the same question that was dealt with in the first example but it actually covers slightly different ground. The SRA responded that the solicitor could enter into a limited retainer with the couple to draft the consent order. The response was restricted to circumstances in which the couple did not wish to retain independent solicitors and the solicitor mediator did not give legal advice to either party. This is distinct from the first example as the solicitor mediator will know what detail the parties have discussed and whether it would be possible to draft the order. The parties could enter into a joint retainer with the solicitor who would need to be careful about transparency and confidentiality with regards to each party.
This then begs the ethical question of when a conflict is not a conflict? In each of the 3 scenarios above the professionals are faced with the same ethical dilemma, can they represent amicable clients who would like one professional to draft a consent order for them. As with all ethical problems, there is never a straightforward solution. Each professional must look to their code of conduct and understand the problems that are likely to arise. Only if the professional feels confident that the anticipated problems will not arise (in the case of the solicitor mediator this will be easier) or all the professional must be confident that they can deal with the parties ethically in the event that a conflict arises. The potential remuneration for such a piece of work is not likely to be commensurate with the potential risk of the professional relationship breaking down but it is a decision for each professional to take.
Different types of client pressure can arise in practice every day, solicitors must be mindful to ensure that we find an appropriate balance between acting in the best interests of each client (SRA Principle 4) and not allowing our independence or integrity to be compromised. If our clients push us to achieve a certain outcome, it can be difficult to maintain independence as can be seen in a Solicitors Disciplinary Tribunal Judgement published in June 2019. T
The solicitor acted for Client A in respect of a right to buy property purchase. He was told that the funds would come from the client’s brother who had savings from his job as a social worker. The solicitor prepared a statement for the brother to check and sign, which he did making no substantial amendments. The transaction did not go through and the file was closed, the solicitor thought no more of it until one day he was told that the local authority involved had launched an investigation. Client A suddenly turned up at the solicitor’s office without an appointment and caught the solicitor in reception between client. The client was very angry and told the solicitor that he blamed him for his faulty drafting, he said the solicitor had put the wrong information in the statement. The solicitor (without checking the file) felt guilty as he was told that the client’s brother was going to lose his job, he felt compelled to help the client and accepted his word that the mistake was his. The client’s anger at this stage impacted the ability of the solicitor to maintain his independence. The solicitor genuinely believed that he had made a mistake, the client was insisting he had and he had no reason to disbelieve him. He allowed the client to dictate two letters in which admitted drafting errors, these letters were typed in 45 minutes and the client took them away with him. He did not really know who the letters were being sent to as they were addressed, “to whom it may concern”. This behaviour is indicative that the solicitor’s independence had been affected as he didn’t check the facts himself and took the client’s word as truth. It also raises an issue of sending letters to anonymous recipients.
On the same day, when the solicitor had time to check the file he realised that he had been duped. He sent another email to the client in which he corrected his position. He told the client that he had not known about the true source of the funds when he drafted the statement and that he was only told the truth after the fraud was discovered. Referring to the previous apology email, the solicitor said; “we send (sic) you the previous email only for your own request and we want you to win this appeal and buy your property”. His intentions were good, in that he wanted to act in the client’s best interests but the letters the client took away with him were not accurate and the solicitor should have taken steps to correct that immediately.
The solicitor clarified his position after liaising with the COLP at the firm, he told the client that he had been naïve in complying with the client’s request which he had initially believed to be true. As soon as he was aware of the facts he corrected his position and made efforts to contact the local authority that was sent the first erroneous letter to rectify the position. It was found that he had not acted without integrity but that he had acted in a way that was tantamount to manifest incompetence as he had not checked his file before sending the first letter. This solicitor was fined £5,000 and made to pay costs of £17,000.
Solicitors have an ethical duty to ensure that they maintain their independence at all times, this can be most difficult to achieve when such pressure is brought to bear by clients who have their own agenda. It is difficult to juggle the duty to act in the clients interests with the other SRA principles.
Mena Ruparel is both a practising solicitor and an experienced legal trainer with a mission to maintain the professional standards of the legal profession for the benefit of both the public and practitioners. Insights gathered from years at the front line have been distilled in this book.