Family Law Cafe | Is anyone else entitled to see my communications with my lawyer?

Over the Christmas/New Year break a story emerged in the media warning that domestic abuse survivors are being targeted by scammers charging for help and advice.

The story told of how opportunists are targeting victims of domestic abuse by lying about their professional experience and charging them for legal and emotional help.

Taking advantage of the vulnerability of victims, they pretend to be qualified counsellors, domestic abuse “consultants” or specialist lawyers, while advertising fees that they claim are lower than standard rates.

The story is (amongst other things) a reminder of the importance of choosing a regulated lawyer.

But who is a regulated lawyer, and how do you know if a lawyer is regulated?

The answer is actually quite simple, and is a matter of nomenclature, or the name used by the legal expert.

The first thing to understand is that the term ‘lawyer’ is not protected. Anyone can call themselves a ‘lawyer’, without any legal training or regulation. Beware, therefore, anyone describing themselves solely by that term.

On the other hand, the terms ‘solicitor’ and ‘barrister’ are protected. No one who is not either a solicitor or a barrister can describe themselves as such.

And to become a solicitor or a barrister requires in both cases the successful completion of a rigorous process of academic and vocational training, ensuring that the solicitor or barrister meets the required standard of legal expertise.

Further to that, all solicitors and barristers who are allowed to practise must have a practising certificate. The practising certificate will be from the Solicitors Regulation Authority for solicitors or from the Bar Standards Board for barristers, the regulatory bodies for the two professions.

So if a ‘lawyer’ that you wish to instruct calls themselves a ‘solicitor’ or a ‘barrister’ but you require proof of that, you can ask to see their practising certificate. You can also check to see if a solicitor is allowed to practise by checking the Solicitors Register, or if a barrister is allowed to practise by checking the Barrister’s Register.

So why is it important that your lawyer is regulated? Well, firstly it means that they will have the required legal expertise, secondly it means that they must conduct themselves in accordance with the rules set out by the regulator, and thirdly if you have any concerns about them you may raise those concerns with the appropriate regulator. You will have none of these protections if you instruct an unregulated lawyer.

It should be noted that many solicitor’s firms employ lawyers who are not solicitors, such as legal executives. But the regulations governing the solicitor will also cover the work done by such lawyers, so you will still be protected if a lawyer employed by a solicitor works for you.

Needless to say, all lawyers used by Family Law Cafe are fully regulated, so you can be safe in the knowledge that you will be fully protected if you use our service.

And if you are a victim of domestic abuse we can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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Resolution, the association of family lawyers, has reported that the majority of its members expect to continue working from home when the Covid-19 pandemic is over.

The association has been carrying out a survey of its members on future working arrangements during its annual conference. Early findings indicate that at least fifty per cent do not expect to return to office working.

Many members have indicated a preference for spending half of their time working in an office and the other half working from home.

All of this raises two questions: will this be what we actually see when the lockdown restrictions end, and will it affect their clients?

As to whether it will actually happen, obviously only time will tell. It may be that whilst there is no initial rush to return to the office, gradually more people will return, attracted by the camaraderie and support that working in an office provides.

Of course it is not just the decision of individual lawyers. Their firms may be attracted by home working as a way of reducing the amount of expensive office space that they require. And once that space is gone, it is unlikely to be replaced.

Whatever, it does still seem likely that many clients will have to get used to the idea of their lawyers not being in the office five days a week.

Which brings us to the second question: how will those clients be affected?

The big difference will surely be in access to their lawyer. Whereas the historic model has been for lawyers to take instructions from, and give advice to, their clients primarily in the course of face-to-face meetings in the office, that will have to change. Obviously, clients will not be able to meet with their lawyers at home, and even where the lawyer does work partly in the office the opportunities for meetings will be fewer.

Clients rightly demand both advice and information about the progress of their case, and both could be adversely affected by lawyers working from home. Whilst many clients will have been prepared to accept problems with the service they receive during the pandemic, most will not expect such problems to continue after the pandemic is over.

Of course, none of this is a problem if the lawyers use an online platform which enables their clients to access their case file and ask questions whenever they want, 24/7. Which is where Family Law Café comes in…

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Image: Public Domain, via Piqsels

The Judicial Executive Board (‘JEB’), through which the Lord Chief Justice exercises executive and leadership responsibilities for the judiciary, has published its response to a consultation concerning possible reforms to the courts’ approach to lay individuals, commonly known as McKenzie Friends, who help individuals who litigate without the assistance of a lawyer. The consultation was launched by the JEB in 2016, following concerns about the growth in reliance on McKenzie Friends, particularly fee-charging ones, as a result if the legal aid cuts in 2013.

The response stated that:

“The JEB remain deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers.”

The response did not, however, recommend that there should be a ban on fee-charging McKenzie Friends, saying that that is a matter for the government to consider. Instead, the JEB support the view that a ‘plain language guide’ for McKenzie Friends and litigants-in-person should be produced, and that the current practice guidance on McKenzie Friends should be updated and reissued, to ensure that it properly reflects the current law.

You can read the Consultation Response here.

Family Law Cafe shares the judiciary’s concerns over McKenzie Friends. If you need legal assistance for a family law problem then your best course of action is to instruct a professional lawyer, who you can be sure is qualified to help you, is fully regulated and insured. We can put you in touch with such a lawyer. However, we recognise that not everyone can afford to pay for a lawyer to represent them throughout a case. For that reason we offer a personalised service that takes into account your financial situation, allowing you to choose what level of service you want and can afford.

To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe provides a genuinely tailored technology-based service, allowing customers to be as involved or as removed as they wish, and to benefit from as much or as little support as they require.

Image: St Georges Hall Court Room, by Michael D Beckwith, public domain.

A recent case has raised serious issues as to whether anyone else, including the court and the other party to any court proceedings, is entitled to see communications between a lawyer and their client, or between the lawyer or client and a third party.

Normally confidential communications between a lawyer and their client for the purpose of advice, or between the lawyer or client and a third party in connection with court proceedings are subject to ‘legal professional privilege’. This entitles the client to withhold the communications from the court or anyone else, including the other party to the proceedings.

However, in a case currently being heard by the High Court a paralegal who was employed by a firm of solicitors acting for a husband in divorce proceedings sent a number of documents, including accounts of communications between the husband and his lawyers, to the court. The court sent copies to the parties, and the wife is now alleging that the husband and his legal team have committed perjury and perverting the course of justice, apparently in the light of the contents of the documents. The High Court is now going to have to decide whether the documents are protected by legal professional privilege.

Hearing the case, Mr Justice Holman said:

“…we live in an era in which so-called “whistle blowing” is less frowned upon than it once was and in which, indeed, in many circumstances whistle blowing is now encouraged. But it is not difficult to see that if some employee of a firm of a solicitors can disclose what is otherwise prima facie privileged material, whether to the court or to the other side, the whole edifice of legal professional privilege might rapidly crumble. On the other hand, fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place.”

In view of the fact that the case raises “new and grave issues” in relation to legal professional privilege Mr Justice Holman directed that is should be considered at the highest possible level, namely that of the President of the Family Division.

It will be very interesting to know what the President decides as it could, as Mr Justice Holman indicated, seriously affect the principle of legal professional privilege. Until then, however, if you are involved in court proceedings you can rest assured that it is unlikely that anyone else will be entitled to see communications between you and your lawyer.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress.

Image: ‘Strictly Confidential‘, by Christian Schnettelker, licensed under CC BY 2.0.