Working with LiPs highlights the ethical dimension; this article was originally published in issue 189 of the Resolution review magazine.
Resolution’s Code and the Law Society Protocol can help us keep focused on ethical practice, which is above and beyond regulatory requirements
Mena Ruparel and Richard Burnham
In our recently published book, How to be an ethical solicitor, we set out (at length) how and why solicitors should place ethics at the heart of their practice. Family lawyers understand that the average client can be vulnerable and emotional. For that reason many family lawyers subscribe to the Resolution Code of Practice and the Law Society’s Family Law Protocol. Opting to adopt these values for the benefit of our clients can add complex dimensions to the ethical decision-making process.
At a family law conference in June, Mr Justice Mostyn asked, “Do family lawyers need to be taught how to be ethical?” We leave this thought with you as we highlight an ethical conundrum likely to be faced by the family lawyer.
Litigants in person
The legal aid cuts brought many changes to family law practice, including an increase in the number of self-representing litigants.
LiPs can be stereotyped by practitioners (and sometimes by the judiciary) as being a bit of a nuisance. But the “Litigants in person in private family law cases” report (Liz Trinder et al, MoJ) shows that there are a range of LiPs, from those who choose to self-represent to those who had no option but to do so. Additionally a person can be classified as a LiP if they have never had any legal advice, or a person who is dipping in and out of taking advice and is partially represented. The perception that the LiP is a troublemaker can lead the practitioner to be negatively influenced when making decisions in communicating with them. Many practitioners refuse to communicate orally with a LiP, insisting instead that all communication be carried out in writing. This might be a measure to protect the firm against allegations of colluding with the other side or if that person alleges that advice was given to them. However, putting up barriers in the way that practitioners communicate with a LiP is an ethical choice, rather than a regulatory one.
Any person who works for an SRA-regulated firm and communicates with a LiP should be aware of the Law Society practice note and Resolution’s Good Practice Guide on the subject.
SRA Code of Conduct – always start here!
When dealing with a LiP, bear in mind the following regulatory matters re Outcomes (O) and Indicative Behaviours (IB):
O (5.1) - you do not attempt to deceive or knowingly or recklessly mislead the court.
O (5.5) - where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client.
O (5.6) – you comply with your duties to the court.
O (11.1) – you do not take unfair advantage of third parties in either your professional or personal capacity.
IB (11.7) – taking unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer.
Remember that Outcomes are mandatory and that Indicative Behaviours (IB) can show whether an outcomes has been evidenced or not.
Taking unfair advantage – an ethical element
There are many interpretations of what it might mean to “take unfair advantage” of a LiP. The specific circumstances of that person will be important: are they educated, do they have access to a solicitor, do they have access to online tools and information, and have you signposted them anywhere.
The Law Society practice note states that taking unfair advantage might include:
• bullying and unjustifiable threats;
• misleading or deceitful behaviour;
• claiming what cannot properly be claimed; or
• demanding what cannot be properly demanded
Within those suggested areas there are a myriad of behaviours that may or may not be considered to be misleading or deceitful behaviour toward a LiP. The ethics of the decision maker will play a large role in the way they choose to communicate with the LiP. We would warn practitioners of the danger of being so busy dealing with their caseload that they may not give the matter much thought at all, adopting a “one size fits all” approach to dealing with a LiP.
A simple example of ethical decision-making concerns the practice of threatening costs orders against LiPs (and even represented parties), where there is no realistic likelihood that a costs order would ever be made in those circumstances.
Whilst the represented party will have the benefit of their solicitor’s advice to temper the threat, the LiP may not. That LiP is therefore vulnerable to the threat, which should only be made in good faith. The practitioner needs to decide whether it is appropriate or ethical to make that threat.
Does the practitioner make it clear to the LiP that there is a framework within which decisions about costs will be made, set out Part 28 FPR 2010 and its practice direction, providing links to the law in the interests of openness? This is the most transparent approach, assuming that the LiP is able to understand the law and the explanation, which might not always be the case.
Or, does the practitioner end each letter, no matter what the content, with the words, “we shall be seeking a costs order against you in this matter”. The latter approach may have no other consequence than to increase hostility between the parties, which would be in breach of the Resolution Code of Conduct and the Law Society Protocol.
Each practitioner will reach their own conclusion about the suitability of their actions when faced with these areas of ethical decision making. The first step is recognising that practitioners make ethical choices every day. Each practitioner, from paralegal to partner, will need to decide what is the best ethical choice in the circumstances. They will need to balance their duty to the client, to the court and to the third party in every interaction with the LiP.
There are multiple answers that would be accepted as being compliant for regulatory purposes. However, some of those solutions may still contravene the Code and the Protocol that bind practitioners who choose to subscribe to those values. The practitioner who makes a choice which breaches the Code has not broken a compliance “rule”. There is likely to be no sanction for making that choice. However, that practitioner has chosen to eschew an earlier ethical decision: to practice family law in a non-confrontational way. They may be able to justify their current actions in a way to satisfy themselves that they generally practice in a non-confrontational way but that on this occasion the departure was justified. That is an ethical discussion that many practitioners will have had with themselves at one time or another.
This example demonstrates the type of ethical dilemma faced by the family practitioner on a daily basis. Our book helps practitioners to navigate these issues, in what we hope is an interesting and practical way.