Since time immemorial, couples going through the breakdown of their marriages have been actively discouraged by the legal profession (or at least the profession’s governing body) to look for help from a single solicitor helping each of them. The thinking behind this is that acting for both would be impossible without that advice potentially being in conflict. In very simple terms, this might be if a wife, for example, said she wanted to stay in the family home, while the husband said he wanted to sell it. What then for the hapless solicitors involved? What do they advise the wife? “You should be able to stay” or “You ought to leave”? So to make sure these sorts of situations never arise, solicitors do not act for both. But could they?
The relevant part of the regulation which relates to this has a section which essentially says that a solicitor can act for both parties if the parties have a substantially common interest in relation to that matter and they confirm in writing that they want one solicitor to act. What could be more of a common interest to a couple who are separating, than the interest of their family? It is core to achieving a fair outcome.
What sort of couples are likely to want a single lawyer instead of two? They are going to be couples who have probably come to terms with the end of their relationships. Couples where there are no destabilising power imbalances and who already have a good ability to communicate. And couples who have similar views about what a fair outcome for each other and their children might look like. In short, many, many couples, including the huge number who currently avoid lawyers because they fear, with some justification, that the law will cause rifts between them, and who also avoid mediation because, as simple and effective as it is, mediation is a process which they simply don’t feel they need.
With Alternative Business Structures on the horizon, giving organisations other than lawyers a chance to deliver legal services – organisations which won’t be governed by the same rules which govern solicitors’ conduct. And with the ever-increasing opportunities for software-savvy tech firms to build systems that reduce the need for a lawyer’s input, this could be a real opportunity for those family solicitors who are already committed to dispute resolution by the most appropriate family-focused way to halt the flow of work to others and show that we really want to walk the walk not just talk the talk of change.
With special thanks to Angela Lake-Carroll, who shared this, her idea, with me.