Acting for both sides “may become the norm” in divorce work


Divorce: Current models of legal practice under pressure

A future where lawyers act for both sides of divorces as a matter of course and others exit regulation to offer a new kind of service has been sketched out by Resolution.

It was likely that the family legal market would “segment” to provide different levels of service provided by “a more stratified range of professionals”.

The family lawyers group identified a range of drivers reshaping the market, including changed behaviour in consumers, commercial imperatives, changes in the courts system and to legislation and procedures, and advances in technology.

Large firms handling high net-worth and complex matters would continue to attract that segment of the market – “although they should not be complacent as they too are likely to have to adjust delivery in line with consumer demand”.

Similarly, those who dealt with care proceedings or domestic abuse would continue to service a “growing” market, albeit one at risk from legal aid cuts and changes in policy.

“Between these two are a significant majority of providers who will need to change the ways in which they work,” explained the Family Justice Briefing 2021.

“Segmentation might prove to be another key element to the emergence of new professionals as they spot gaps in the market or for existing members (especially those who are younger) seeking more attractive or fulfilling ways of working.

“These professionals may well include legal professionals who could choose to abandon current models of family legal practice, depart from regulated practice and work as providers in their own right, offering services to both people involved in various forms of relationship breakdown, including divorce.”

The implementation next year of a ‘no-fault’ divorce registration system, which also provides for separating couples to jointly register their decision to divorce, raised the question of whether working with both clients would necessarily and always represent a conflict of interest, the report said.

“If there is no real conflict of interest, then there may be no significant issue around client confidentiality either. If the government’s intent is to reduce conflict within families, they may come to consider that not being able to receive services jointly from a single legal adviser may of itself fuel conflicts.

“Even if issues such as conflict of interest and client confidentiality cannot be resolved, by stepping away from regulated practice as a solicitor, practitioners could forge new ways of working with both clients.”

Acting for both parties has already begun, such as a service offered by Withers, as well as the barrister-led Divorce Surgery and unregulated business amicable.

Last year, a senior High Court judge granted declarations making it clear that amicable did not break conflict of interest rules by acting for both husband and wife.

Resolution said: “Once high-profile firms start to provide this type of service, others will follow. No doubt existing firms and practices will be watching the progress of these initiatives closely and may well choose to set up a similar service.

“It is also likely to attract the attention of other providers, looking to fill what they perceive as a gap in the market.”

The report suggested that family law could follow the path of conveyancing practice: “It is easy to see that there is a possibility that a new professional, the ‘licenced family adviser’ or ‘family legal adviser’ may be an attractive proposition for those whose primary interest is in a more comprehensive approach to resolving matters arising from family relationship breakdown and transition.”

This all meant that the traditional models for high street practice “may be difficult to return to or sustain over time”, while the ability to work more flexibly and remotely may help women in particular.

Resolution also predicted that, in an economy hit by both Covid-19 and Brexit, “there will be a question of ethical practice and how reasonable it is or can be to encourage people to incur further debt” to pay for legal services.

“It is likely that courts will also look at costs more forensically and there is already no shortage of reporting in relation to costs being queried by the judiciary now.

“It is recognised that lawyers have significant overheads and that the rate for the job also reflects the level of expertise they hold. Unfortunately, in a competitive market, they cost too much for a considerable percentage of the population.

“In addition, there have been difficulties in commoditising services to fixed fees. However, if ways cannot be found to address this, smart providers will profit most, especially those whose offer is online, outside of regulated practice and which does not involve them in overheads such as buildings [and] staff.”




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