Conflict, assisting and representing ‘both’ parties

Mostyn J has provided useful confirmation for family practitioners that lawyers can, in principle, act for both parties in the drafting of family court documents where there is no dispute.

Rules 6.1 and 6.2 of the codes of conduct for solicitors and firms under the SRA Standards and Regulations states, in relation to conflict of interests:

You do not act if there is an own interest conflict or a significant risk of such a conflict. the

clients are competing for the same objective, ... you are satisfied it is reasonable for you

to act for all the clients.


The background to JK v MK [2020] EWFC 2 could not be simpler. The parties married in 2015 and separated in 2017. They had no children; the separation and divorce were amicable; they had no capital assets and both were earning. They wanted a simple clean break and agreed terms themselves.

Together, they asked online divorce service ‘amicable’ to help them navigated the process and undertake what was required. Accordingly, amicable helped in the preparation of the divorce petition, the application for decree nisi and the statement in support. The petitioner filed the documents personally and decree nisi was pronounced in due course.

amicable drafted the appropriate order and helped in the preparation of further forms including the Form A and the statement of information for a financial consent order, charging a fee of around £600.

However, the family court expressed concern that in acting for both parties, amicable was in a position of conflict of interest. There was further concern that amicable was wrongly carrying out reserved legal activities in breach of the Legal Services Act 2007. Amicable made clear that it assists but does not represent clients.

The matter was referred to the High Court where Mostyn J made declarations that:

  • there was no conflict where ‘amicable’ acted for both parties when drafting a consent order.
  • doing this was neither a reserved legal activity nor a reserved instrument activity and, therefore, was not a breach of the Legal Services Act.

But on what basis?

The conflict issue

Mostyn J made clear that where a solicitor acts for two clients, as a fiduciary they must not act intending to further the interests of one client to the prejudice of the other’s interests. Therefore, under rule 6.2 solicitors can act for clients jointly where they “have a substantially common interest in relation to the matter or the aspect of it, or where they are competing for the same objective”.

He took the view that in the case of an online service such as amicable, a similar fiduciary duty arises which means it could act for both parties.

Notably, he highlighted amicable’s system of ‘red flags’ which include domestic violence including psychological abuse; alcoholism or mental health issues; where one party has already instructed a solicitor; where one party is unprepared to negotiate; and where there is a suggestion that assets have not been fully disclosed.

When one of these is raised, it puts amicable on alert that there could be a conflict of interests, in which case it will decline to accept the case. It them sends the parties to solicitors.

Mostyn J commented in his ruling that “these red flags entirely neutralises the risk of any conflict of interest arising”.

Reserved activities

Whether the Legal Services Act was being violated posed a trickier issue. Mostyn J set out the legal framework governing the provision of reserved legal activities, noting that under amicable’s business model, the parties filed documents themselves. All filing is done by its customer, and on that basis the Act was not breached.

Mostyn J helpfully offered a practical perspective. He said: “The giving of legal advice per se by someone who is not a qualified lawyer is not prohibited under Paragraph 4. What if the advice extended to drafting a claim form such as a petition, or an application for degree nisi or the statement in support? It would be surprising if this were forbidden.

“Imagine if you were getting divorced and you have to fill in Form E. Imagine that your brother was divorced two years earlier. Plainly your brother is not committing an offence if he gives you the benefit of his view of the law. And surely, he would not be in breach of Paragraph 4 and thus committing an offence if he helped you to fill in your Form E which you, acting in person, intended to file with the court.

It is common, he said, for litigants faced with filling in Form E to approach their accountant for assistance. Such an accountant would not be in breach of Paragraph 4 in filling in the numeric parts of a travelling draft form.

But he sounded a note of caution: the declarations he made only relate to amicable. There are many other online divorce facilitators, but they can only rely on these declarations if their business models are “virtually indistinguishable” from amicable's.

Access to justice

Access to justice is a growing problem against the background of funding cuts and squeezed budgets. Mostyn J’s observations on the positive role of tech innovation are noteworthy. He stated in his ruling: “There can be no doubt that the initiative of amicable has greatly improved access to justice for many people effectively disenfranchised from the legal process by the near total withdrawal of legal aid from private family law proceedings on 1 April 2013.”

It's also worth highlighting the comments of the SRA investigation officer in her witness statement following an investigation into amicable, that “amicable's model is an example of innovative working".

But Mostyn J also pointed that that this kind of service is not yet regulated, giving rise to policy questions. The clear social benefit of such a service must nonetheless be subordinate to the law.

Family practitioners can now take some reassurance that they can act for both parties in the drafting of family court documents where matters have been agreed – so long as there are no ‘red flags’; in which case, they should decline to act.

 

 

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