Kim Beatson, Partner
Family Law Journal - September 2010
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At a Resolution National Conference some years ago we held a debate on whether there should be more transparency in children cases. One of the speakers was Jim Parton, former Chair of Families Need Fathers. He began by reminding us that divorce lawyers are lucky to hold the mandate in their field. Although we hold ourselves out as specialists in children and financial matters, it does not follow naturally from our training. He went on to say that we should respect the mandate and treat it with special care; the implication being that we could not guarantee retaining it.
This polite word of warning may not surprise most Resolution lawyers. For many years we have espoused the virtue of holistic education and soft skills training as essential for good practice and just as important as black letter legal knowledge. Resolution’s involvement in mediation training and our exclusive provision of collaborative law training is a recognition of the fact that other skills are necessary and that family lawyers are not necessarily the best equipped professionals to help our clients at every stage in the separation process.
One thing is for sure and this is that clients are increasingly seeking a relationship with family solicitors that involves co-working. Where public funding and postponed payment arrangements are unavailable, solicitors are often unaffordable and unbundling effectively involves a solicitor acting as a “subcontractor” to whom specific tasks are outsourced by the client.
Such tasks could involve writing letters, drafting documents, helping clients to negotiate or nurturing advocacy skills. It could involve research or providing a second opinion and, of course, it could involve representation at Court with the client acting in person until the hearing. Typically, the client pays the solicitor at hourly rates or a fixed or capped fee for different aspects of their advice. The arrangement is less than ideal and there are many pitfalls. However, only the most short sighted solicitors or those with the most privileged clients can afford to ignore the increasing demand for clients and solicitors to work in an interdependent fashion.
Whether to accept work on this basis is, perhaps, the most difficult decision of all. It is not difficult to imagine an unbundling arrangement with a client of reasonable sophistication. For example, we cannot pretend that completing the average Children Act form requires a significant degree of legal expertise and highly numerate clients are well equipped to complete Form E in most cases. However, solicitors should not assume that clients understand the litigation process or the substantive law in issue. Clients who attempt to negotiate an unbundled retainer can, indeed, be very sophisticated, but they are also extremely costs conscious and may be keen to cut corners. It is essential that the solicitor invests an adequate amount of work on the case at the outset and the decision whether to take on cases of this nature will require skilful and rapid screening. As unbundling involves the more interdependent style of working, solicitors need to form a view on whether or not they feel they can work with the client as part of a team.
Fundamental to the understanding between solicitor and client is a joint decision as to who will be responsible for what. I recommend that clients are given general information outlining the litigation process, including cost rules and key legal points. However, the client care letter must be carefully amended by reference to the different stages of litigation and to the breakdown of tasks for each stage. Failure to do this means that solicitors will mismanage clients’ expectations at best and, at worst, it will lead to a claim in negligence. At the outset of instructions and throughout a case, clients should be advised about the importance of Court deadlines and limitation periods, both in connection with work for which they are responsible and work for which the solicitor remains responsible.
ADR
Forrest “Woody” Mostyn is a well known mediator and collaborative attorney from Los Angeles. At a seminar in February 2010, he informed Resolution members that unbundling had improved the profitability of his practice, so that his gross receipts had increased by over 33% during his first year of non-Court practice. He explained that his practice was divided into two roughly equal parts: serving as a mediator for 50% of the time with the other half involving four representative roles:
- representing clients as a lawyer whilst the clients proceed through mediation;
- collaborative lawyer;
- unbundled lawyer for litigants-in-person;
- what he described as a “transactional lawyer” dealing with pre-marital, post-marital, cohabitation and other agreements.
In 'Collaborative Law Practice: an unbundled approached to informed client decision making', (published in the Journal for Dispute Resolution Volume 2008), Woody Mostyn speaks of collaborative law as unbundled practice, because the client determines the extent and depth of services required from the attorney. The client (with the assistance of the collaborative lawyer) decides whether to involve other collaboratively trained professionals, such as financial neutrals and family coaches.
I remain unconvinced that the collaborative lawyer offers a truly unbundled service. Of course, the 'participation agreement' disqualifies the lawyer from representing clients in court if the collaborative process proves unsuccessful. However, collaborative work often involves a “full service” contract between the lawyer and client so that the lawyer is advising, researching, drafting and negotiating and in many cases is processing an undefended divorce suit in parallel with the collaborative work. This is not the same as a traditional lawyer offering discrete unbundled services. Those clients who choose mediation already have an unbundled relationship with their lawyer by limiting the role to advising during the process and reviewing and drafting agreements.
Conclusion
Professor Richard Susskind is author of the 1996 book, The Future of the Law (Clarendon Press). He regularly warns the legal profession that the end is nigh and that there will in future be fewer lawyers and the success will be those who provide a bespoke service. This may mean very little difference in the short-term, but in the long-term, it is very hard to imagine how family lawyers can retain domination in the production of straightforward forms and financial data, not least because most of our clients are wholly opposed to this domination. This creates a huge financial tension and Susskind warns that “the law firm that actually becomes as passionate as the client about saving money and doing things quickly and cheaply in a simple way, will be the law firm that will immediately benefit”. His prediction is that in the next 20 years “a great deal of lawyers will be doing either different things or not legal things at all”. The challenge to all of us is to develop a rapport with our clients that truly enables them to voice their hopes and aspirations so that we deliver what clients need. Collaborative lawyers and mediators are taking the message on board.
Kim Beatson is a Partner with Anthony Gold and Head of the Family Law department. For further information email Kim or call 020 7940 4000.
This article was published by Family Law (a publishing imprint of Jordan Publishing Ltd) in the September 2010 issue of the journal Family Law.
