Family business | Stories from the conflict zone

Family lawyers know that divorce can transform otherwise sensible people into hot-heads. When a newspaper asked me recently to share some of the "dirtiest divorce tricks" encountered in my 30-year career, there were many from which to choose: from the wife of a pianist, who sold her husband's beloved Steinway piano without his knowledge, to the case of a wife who hired a hitman.

One of the most common "dirty tricks", however, is not hot-headed at all and for this reason, it stands out from the others. This is the practice of "conflicting out": when we cannot advise a client because of work with another person involved in the case, or other conflicts of interest. Fortunately, it is one that we are often in a position to do something about - if we get wise to it in good time.

I have known spouses attempt to conflict out every solicitor in the locality. I have known some solicitors advise clients to conflict out other solicitors against whom they would rather not be up against in court. On one occasion, a man telephoned ahead for an emergency appointment and was prepared to fly over from the Caribbean to see me. Another time a client paid a retainer, never turned up and divorced offshore. My favourite: the man who tried to conflict me out by consulting a lawyer at my husband's offices. Sadly for him our two firms, Stowe Family Law and Grahame Stowe Bateson, are separate.

Wasted trip

False names do preserve confidentiality (and any ill intentions), but they also interfere with conflict checks. Sometimes clients give false details when arranging first appointments, for example if they are well-known in the local area or in the media. Sometimes a caller knows that if they give their real name, we will refuse to see them because their spouse is or was a client of the firm. It surprises me how people expect solicitors to accept instructions regardless. I was expecting to meet with a "Mrs Smith" recently and was startled to see the second wife of a former client. She told me she had travelled a long way to see me and she hoped in the circumstances I could advise her about her marital difficulties. I'm afraid she had a wasted trip. Had she told the truth from the outset, an appointment would not have been made for her. Of course I also had to keep her visit secret from my client, who I bump into occasionally in London.

Don't forget that if the conflict process is subverted, you are the one left exposed - and you could lose both clients. Even the slimmest possibility of a conflict should be acted upon by solicitors, who in certain circumstances must quickly make up '¨their minds whether to act or not, and '¨what if anything it is possible to tell the potential client.

Recently, a would-be client arrived under a fictitious name and soon dissolved into tears. He said gathering the courage to see me and talk to a lawyer about his marriage was deeply painful, hence the pseudonym, but he had discovered his wife was having an affair with another man. I asked for his real name, and excused myself to carry out a conflict check. I then had to explain to the distressed man that I was unable to advise him, but was unable to say anything more. He knew his wife and the other man had seen another solicitor, and he immediately guessed our firm was involved. We were. I sympathised, but could do little more. Carrying out the conflict check straightaway, despite having to interrupt the meeting, meant we could continue to represent our retained clients.

Gut instinct

So how do you intercept dastardly spouses who will pay a one-off fee to expel you from the case before it has started?

Your checks should be as thorough as possible. Trust your gut instinct. Such spouses aren't difficult to spot: they insist on super-urgent appointments, but don't seem unduly bothered about the advice and proposed fees. They nearly always seek confirmation that you can no longer accept instructions from the other party.

How to deal with them? Usually, I guess the game before I meet them, and I treat them all as a challenge. The trick is to turn them into your client. It isn't easy. But impress them enough, and they will realise that their reasons for trying to conflict you out are exactly the same reasons why they should be instructing you.

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