Why we need a two-track profession

Twenty years ago I qualified into family law and there I stayed. It is a Marmite area of law but I remained because I love to hear peoples’ stories and help them sort out the mess of their separation. But for a good while I have worried about the service that we solicitors are routinely offering clients. 

For my book (Almost) Anything But Family Court, the editors (OnlyMums and OnlyDads) thought it would be useful to define what a solicitor is and does. I took this definition from the Law Society website: ‘Solicitors represent and defend clients’ legal interests, and provide advice…’

It has been a long time since I even thought about what it means to be a solicitor so it was a useful exercise. 

Abuse of power?

Looking at this definition, it does not take a genius to see that there will be messes created by such a blinkered approach – for example, non-disclosure agreements drafted by lawyers and used to protect sexual predators in the workplace, as highlighted by the #MeToo movement.  

The Post Office Horizon IT Inquiry is raising questions about the behaviour of the lawyers involved. In his 21 September Substack, Joshua Rozenberg asked: ‘Are there any limits to what lawyers should do in the interest of their clients?’ He quoted legal ethics academic Richard Moorhead, predicting that the inquiry will have to grapple with any possible abuse of power. As I write, the lawyers involved have denied any wrongdoing.

What about family lawyers?

Many family lawyers still work in the traditional way. They write letters setting out their client’s case, their version of history, and insist on their way forward. Sadly, these letters are too often vicious in tone and do not temper their client’s anger and all the other emotions that go with a break-up. If swapping letters does not work, they then issue their application at court and maybe even the Court of Appeal thereafter.  

When two solicitors, each separately instructed, offer conflicting advice (in the interests of only their client), so much is lost. The ‘fire of dispute’ is fanned and in the ‘fight to be right’ the whole family is victim; especially the children. The court will do its best to help but by then it is usually too late and the damage is done.

Very poor solicitor behaviour is often defended and even applauded, because the solicitor is working in the best interests of their client. Sadly, the Solicitors Regulation Authority and Resolution find it difficult to police us as, after all, the solicitor is just doing what their client asks of them (and what our profession demands). Often, I do not think we solicitors realise the long-term negative effects of our work. We simply do not see our work as divisive or unhelpful. I have not been perfect and I have to live with the damage I have done. My outrageous crowning glory was serving documents on a respondent on Christmas Eve!

It is not the law that is the problem

I disagree wholeheartedly with Baroness Shackleton when she says the law is to blame for her clients’ litigation and making her fortune (Gazette, 20 March 2023). It is not the law, it is us and the way we work. The way many of us work is unsustainable, not fit for purpose and very likely unethical.

What about the whole family?

In all this consider:

1.    Who is looking after the interests of the family as a whole?  

2.    Who is representing the children’s interests?  

The answer to both is no one. This is a tragic deficit. And we need a long overdue overhaul in our approach.

I want to see a change to how we are trained, how we work and ultimately how we see ourselves in the family law arena.

Family law needs two sorts of professional and two tracks of training.

Two sorts of family law professional

The first is what we are used to: the family law professional who protects/preserves the person or the asset and will write letters and go to court. But the rest of us do not need to do that, not really.

So, the second sort of professional would be a family law solutions professional working for the whole family, not just their own client, but still managing to meet their professional obligations. Yes, it is possible. No letter writing and no court.

Both professional tracks need to be just as valued and applauded. At the moment there is no accreditation for those who avoid court and have dispute resolution expertise by either the Law Society or Resolution. This is another shortcoming.

The public are very vulnerable

I felt the public were vulnerable to the vagaries of my profession. I wrote (Almost) Anything But Family Court for them to consider and choose a way of sorting things out that does not include court or the usual letter-writing route. The big problem is that we have created process options (for example, collaborative, solicitor neutral, mediation and arbitration) which each have their own set of rules and are complicated for clients to understand (another reason why I wrote the book). It is also difficult for solicitors to be creative when other pressures abound.

Solicitors inevitably find it hard to be flexible about what process might work for which couple and when or if they have to bring in the fees; it is easier just to write letters and go to court. Even with the court in crisis those fees will keep coming in.

But family solutions professionals will help the client(s) navigate their way around these processes or, better still, just find a way that will sort things out that is bespoke to their needs. Is there really a need to set out the different ways of working/all the process options? In the end, clients will usually go with our recommendations. It is our job to guide them to what will work at its bespoke best.

Do most clients need a legal solution?

Often the last thing the clients need is our legal intervention. Usually, they just need time – time to get counselling, therapy, a divorce coach or a co-parenting course (or whatever other expert help they need). Couples need to learn how to move forward as a couple, not competing but cooperating. For those who cannot or will not, then of course the court must intervene, but only as a last resort.   

Family law solicitors will need to upskill to become family solutions professionals – and quickly. I am working with Jacinta Gallant and OnlyMums and OnlyDads to start the process of providing this desperately needed training.

Why can’t solicitors train to do this from the off? It would be so refreshing if solicitors could choose which kind of work they wanted to do from the beginning of their career.  

More importantly, the public will know what they are ‘buying’. There is a reluctance among the public to instruct solicitors for fear of massive fees and rising acrimony and, frankly, who can blame them. They are voting with their feet. They are using the internet and others holding themselves out as experts without any insurance or comeback. I say we need to work hard to preserve our position or lose out to the wild west of the internet. If there was a two-track profession, the public would know and could trust who they are instructing and what service they are being offered.

 

Jo O’Sullivan of O’Sullivan Family Law is an accredited mediator, collaborative practitioner and pioneer of the Solicitor Neutral process