Facing pressure a client
By Mena Ruparel
A conflict can easily arise when acting for both parties who reach an amicable agreement on separation, but solicitors must think ethically, says Mena Ruparel
It is not unusual for solicitors to face extreme pressure from existing or prospective clients to act in a way that may serve their best interests, but could be contrary to the ethical principles by which we must practice. Very recently, I read a blog by a family solicitor in which he described the pressure he is put under from prospective divorcing couples who only want to engage one solicitor. This can, of course, raise the issue of actual or potential conflict of interests. Although separating couples can untangle their lives amicably, the solicitor’s role is to act in their client’s best interests. In any situation where a solicitor has multiple clients, there is the real prospect of a conflict arising.
Clients struggle to understand why their apparently amicable agreement might be subject to future problems – suspecting the lawyers of wanting to make money out of them rather than to act in their best interests. They don’t understand why they need one lawyer each. For an experienced family lawyer, it is very 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. If requested to act for both parties, the response from the vast majority of practitioners would be to refuse all such requests. Many will agree that this is the best ethical decision.
BARRISTERS ACTING FOR BOTH PARTIES
There is an innovative service in which barristers will now act for both parties in situations where a divorcing couple wants to use the same lawyer. The Code of Conduct for barristers is different to the solicitors’ Code of Conduct – but not to the extent that they are allowed to act for two parties where there is the possibility for real conflict. In circumstances where the barrister realises that a conflict has arisen, they must withdraw their services from both parties – unless one spouse is likely to consent to the barrister representing the other. Even if this happens, the barrister can only continue to represent one party if they are able to continue to maintain the confidentiality of both parties. The potential for conflict to arise is the same for barristers as it is for solicitors. If conflict was to arise during the process of drafting an agreement, it could cause reputational damage which would be tricky to manage.
Unusually, the Solicitors Regulation Authority (SRA) issued guidance for solicitors acting for two parties in this situation in its “Question of ethics” bulletin (August 2015). The guidance was a response to a question from a regulated solicitor mediator who asked whether they can draft a consent order for two parties who have resolved matters at mediation with that solicitor. This scenario seems to be the same as the earlier scenario (where a divorcing couple wants to use the same solicitor) 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. However, 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 scenario because the solicitor mediator will know what details 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; but the solicitor would need to be careful about transparency and confidentiality with regard to each party. This then begs the ethical question: when is a conflict not a conflict? In each of the three scenarios above, the lawyer is faced with the same ethical dilemma – can they represent amicable clients who would like one lawyer to draft a consent order for them? As with all ethical problems, there is never a straightforward solution.
Each lawyer must look to their own professional code of conduct and understand the problems which are likely to arise. Only if they feel confident that the anticipated problems will not arise – this will be easier with solicitor mediators – the lawyer must be confident they are able to deal with the parties ethically should a conflict arise. But is the risk financially worth taking? 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. However, it is a decision for each lawyer to take.
BALANCING THE PRESSURES Different types of client pressure can arise in practice every day. As solicitors, we must be mindful to ensure 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. It can be difficult to maintain independence if our clients push us to achieve a certain outcome. This is demonstrated in a Solicitors Disciplinary Tribunal (SDT) judgment published in June 2019. The solicitor acted for a client in respect of a right to buy property purchase. He was told 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 through and sign. The brother did so and made no substantial amendments. However, the transaction didn’t go through and the file was closed. The solicitor thought no more of it until, one day, he was told that the local authority had launched an investigation into the application. The client suddenly turned up at the solicitor’s office without an appointment. He was very angry and told the solicitor that he blamed him for his faulty drafting and he had put the wrong information in the statement. The solicitor did not check the file and felt guilty because the client told him his brother was going to lose his job. The solicitor felt compelled to help the client and accepted his word that the mistake was his. At this stage, the client’s anger affected the solicitor’s ability to maintain his independence. The solicitor genuinely believed he had made a mistake; the client was insisting he had made a mistake; and he had no reason to disbelieve him. The solicitor then allowed the client to dictate two letters in which he admitted drafting errors. These were typed in 45 minutes and the client took them away with him. They were addressed ‘to whom it may concern’ and the solicitor did not know who the letters were to be sent to. This behaviour is indicative that his independence had been affected because he didn’t check the facts himself and took the client’s word as truth. (It also raises the separate issue of sending letters to anonymous recipients.) However, that same day the solicitor had time to check the file and realised he had been duped. He sent another email to the client correcting and clarifying his position. He told him 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. He also made efforts to contact the local authority to rectify the position as soon as he was aware of the facts. The SDT decided that the solicitor had not acted without integrity. However, it did find 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. He was fined £5,000 and ordered to pay costs of £17,000. Solicitors have an ethical duty to ensure they maintain their independence at all times. In practice, this can be most difficult to achieve when intense pressure is brought to bear by clients who have their own agenda. It is difficult to balance the duty to act in the client’s interests while having regard to all other SRA principles.