[1]SRA: no ban on relationships in code of conduct
A solicitor who is in a relationship with his client while she goes through an acrimonious contact dispute is to be investigated by the Solicitors Regulation Authority (SRA), with a High Court judge saying that the lawyer is “in a situation where he cannot give independent professional advice”.
The unnamed solicitor has referred himself to the SRA, while his client’s former husband’s solicitors have also raised it with the regulator.
Relationships between solicitors and their clients are not banned but outcome 3.2 of the SRA code of conduct [2] requires solicitors to ensure they have the “systems and controls” in place to assess whether their ability as an individual to act in the best interests of their client is “impaired by… a personal relationship”.
A recently revised good practice guide [3] from family lawyers group Resolution goes further, saying that “given the vulnerable position of the majority of family clients and the nature of the relationship between a solicitor and the client, the solicitor should be careful to avoid instigating a personal (non-professional) relationship with the client…
“Family lawyers should not have sexual relationships with their clients. If such a relationship exists or develops during the course of the retainer, then the solicitor should immediately explain to the client that they can no longer act.”
K v D (Parental Conflict) [2015] EWFC 49 [4] involved what Mr Justice Peter Jackson described as a “shameful” level of conflict between the parents. In the ruling he recorded a warning from a CAFCASS officer about the impact it was having on the children in capital letters “in case the parents will now decide to pay attention” to it.
Having set out the terms of contact between the father and his two children, the judge addressed the issue of the solicitor’s relationship with the mother. “I have not been asked to make any order about this and do not do so,” he said. “However, it is a matter that is plainly relevant to the interests of the children and the integrity of the court proceedings as a whole.”
The solicitor was instructed in September 2014 and they began a relationship six weeks later. At the outset the mother sold her car and paid the solicitor the proceeds of £20,000 for his legal services. Since then, she has incurred some £300,000 of legal fees, all unpaid.
The couple has travelled abroad, once with the children. The solicitor spent Christmas in the family home with the mother and children and is “a regular overnight visitor to the home”. He has also been supporting her financially.
Jackson J said: “Instead of the client paying the solicitor, in this case it is the other way round. The propriety of the mother’s solicitor acting for her in the circumstances has been referred to the Solicitors Regulation Authority by the solicitor himself and by the father’s solicitors.”
He said that while there was “no absolute bar on a personal relationship between solicitor and client”, in this case he saw “grave difficulties” for several reasons, including that the personal involvement of the solicitor has exacerbated the acrimony of the dispute, while there had been several occasions when the mother was challenged about situations in which her solicitor would be a compellable witness.
He continued: “I refer to the solicitor’s response to the concerns raised on the father’s behalf. Four letters have been written asking for an explanation of the nature of his relationship with the mother. The only reply has been this: ‘The meetings between [the mother] and representatives of our firm are subject to legal professional privilege. However, without prejudice to that privilege, we can confirm that no discussions concerning the case have occurred or will occur in the presence of or in the hearing of the children.’
“That entirely unsatisfactory and, I am afraid to say, disingenuous response (and the fact that every subsequent request for information has been ignored) demonstrates that the solicitor is in a situation where he cannot give independent professional advice to the mother.”
The judge said he also had “serious concern” about the mother’s position should the relationship end, “and about the solicitor’s position should he be challenged about his professional service”.
He also criticised the failure to mention the relationship in February, when a district judge ordered the father to pay the mother £16,000 for her monthly legal bills. “It was plainly a material and disclosable fact.”
Jackson J said that while the mother would be placed in “great difficulty” by the withdrawal of her solicitor, “the ends cannot justify the means if it is not proper for him to be acting”.
He concluded: “I direct the parties to refer these observations to the SRA and, if the solicitor continues to accept instructions, to any judge conducting future hearings.”
See Fast Futures blog here [5].