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DTMark

Solicitor Accountability/duty Of Care

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Not sure if the topic title is quite right..

Scenario is this:

I've been helping someone I know deal with their ex-partner with regard to contact with their children.

The woman is basically a complete fruitcake and behaves rather like a child, throwing out spurious allegations in all directions.

She is no longer "prepared" to deal with this and all correspondence is from her solicitor.

Every letter contains false and nonsensical allegations, some very serious and all supporting her objective, which is to collect the maintenance but get contact stopped. Or at the very least, to frustrate contact at every turn as far as possible.

That the matter has been before court and resulted in a contact order, and her previous breach then resulted in an enforcement order, and her allegations have all been rejected by the court makes no difference.

They're "her kids and she's not going to be told what to do". You get the picture. This is highly likely to be going back to court for enforcement again soon.

Anyway, were she writing the letters, I wouldn't be at all surprised at the content. Actually, I suspect what's happening is that she is indeed writing the letters, and the solicitor simply prints them on their headed paper and forwards them. I don't think she is consulting with them as such or vice-versa because they make demands that the solicitor would know the court has already over-ruled asserting rights that she does not have, and they are written in a way that does not appear to be to be "a solicitor writing". In particular, emotive wording.

Question is this: does the solicitor have any "duty of care" over the content of those letters - for example the false allegations, or can they simply write whatever they like with impunity?

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A friend of mine is in a very similar situation (but a property/land dispute) with the other parties solicitors writings letters/demands with no merit to them whatsoever - it's gone to court several times with even the judge stating the claims were spurious and should not have reached court - however the other solicitor knows that whoever wins or loses he gets paid for every letter/minute spent so they are quite happy to continue this nonsense and my friends solicitor has to reply/appear in court also (more fees). Welcome to solicitors!

alternatively

Is it a 'real' solicitor or has she just printed the letters on letterhead?

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It's a real solicitor. They apparently specialise in these sorts of cases.

The last one makes a number of demands which must be met without dispute or argument before contact can continue.

Those demands were already rejected by the court.

They can ask, of course. But they cannot demand.

I wonder if a solicitor is supposed to work to, or be held to, a higher standard than this.

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It's a real solicitor. They apparently specialise in these sorts of cases.

The last one makes a number of demands which must be met without dispute or argument before contact can continue.

Those demands were already rejected by the court.

They can ask, of course. But they cannot demand.

I wonder if a solicitor is supposed to work to, or be held to, a higher standard than this.

The client can ask and solicitor can advise on the merits of the case and possibility of winning. The default position for the woman is to do nothing, she still has the children, the CSA on her side and any orders re child maintenance etc, your friend has to do all the chasing

There is such a thing as vexatious litigation and the courts can impose an order against such action, but again it goes to court - money as usual! - if there was any domestic violence against her I think (I may be wrong) she is still entitled to legal aid so she can cause as much sh!t as possible

As an aside, another friend has had to fork out £5000 just to initiate proceedings to see his child after the mother refused access for no apparent reason

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The client can ask and solicitor can advise on the merits of the case and possibility of winning. The default position for the woman is to do nothing, she still has the children, the CSA on her side and any orders re child maintenance etc, your friend has to do all the chasing

There is such a thing as vexatious litigation and the courts can impose an order against such action, but again it goes to court - money as usual! - if there was any domestic violence against her I think (I may be wrong) she is still entitled to legal aid so she can cause as much sh!t as possible

As an aside, another friend has had to fork out £5000 just to initiate proceedings to see his child after the mother refused access for no apparent reason

I would assume that the idea is roughly: someone who gets a letter from a solicitor will assume that the solicitor is entitled to ask for what they are demanding because they are a solicitor and therefore must have studied the case and be within their rights to make such demands. This is not the case.

I wonder whether the Court would be obliged to enforce some sanction (fine, community service) upon a second enforcement order since she's basically laughing at them which I would not have thought would be appreciated.

"vexatious litigation" - that's the phrase I was looking for. Though she will not start any court action because the things that she wants, she has already been told that she cannot have. Indeed, on the basis of her behaviour the court actually removed some of the things she had asked for from the order because they could see they these things were baseless, so she ended up worse off.

Had she asked the solicitor "If I make these demands, will I get what I want" the solicitor would have advised "No, not if they are contested, you are not entitled. But, we can write a letter and make the demands anyway, it's a no-lose".

Except for the baseless, emotive and quite serious allegations. That's what's surprising me. This would appear to constitute some form of harassment?

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Is it not defamation - whats in these letters ? Or libel as it's known in England.

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Is it not defamation - whats in these letters ? Or libel as it's known in England.

My understanding is that it would be if the letters were in the public domain, but they are not, so the only parties that see them are him, her, and the solicitor.

That said, at the next court hearing (there's bound to be one) defamation of character shall be raised precisely because at that point those allegations reach a wider audience.

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Just a thought....have you passed the letters to your 'friends' solicitor?

He doesn't have one. Frankly, the cost would probably be prohibitive.

The case isn't about trying to get a contact order, the court has sided with him in every instance and I have to say, worked exactly as you might hope it would - it's quite endearing when things work the way you think they are supposed to.

It's about getting her to comply with it.

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It's about getting her to comply with it.

This isn't really my forte, but not complying with a court order is contempt of court

Your friend should get a solicitor at this point, as courts take a VERY VERY dim view of contempt (basically it's classed as telling a judge to f**k off) andthe court would come down hard on her (possibly even custodial if she really yanks their chain) and your friend should get a result

p.s. this is really really not my area

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This isn't really my forte, but not complying with a court order is contempt of court

Your friend should get a solicitor at this point, as courts take a VERY VERY dim view of contempt (basically it's classed as telling a judge to f**k off) andthe court would come down hard on her (possibly even custodial if she really yanks their chain) and your friend should get a result

p.s. this is really really not my area

Indeed - this was the reason for the enforcement order - clear failure to comply. At which point the court then removed certain stipulations that were in her favour from the original order.

When this goes back to court again, I suspect she will point at the solicitors letters as though those allege fact because they came from a solicitor.

Basically she didn't get what she wanted from the court so the idea is to hide behind the solicitor in the belief that some nasty letters will get results and/or that she could point to said letters and say "Solicitor said so".

Indeed she tried exactly that last time and the court suggested she should get a better solicitor.

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Solicitor makes money no matter what, and gets paid more the longer things continue.

In other words they don't have any incentive to resolve things quickly and amicably.

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A friend of mine is in a very similar situation (but a property/land dispute) with the other parties solicitors writings letters/demands with no merit to them whatsoever - it's gone to court several times with even the judge stating the claims were spurious and should not have reached court - however the other solicitor knows that whoever wins or loses he gets paid for every letter/minute spent so they are quite happy to continue this nonsense and my friends solicitor has to reply/appear in court also (more fees). Welcome to solicitors!

alternatively

Is it a 'real' solicitor or has she just printed the letters on letterhead?

This ^^^^ it`s just a game of milking both parties solicitors love this game and are very good at it

Friend was in a similar dispute when it eventually went to court the judge wiped the floor with both solicitors/barristers but none the less there was over 40k in cost which came from the estate as the opposing party were the executors

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He doesn't have one. Frankly, the cost would probably be prohibitive.

The case isn't about trying to get a contact order, the court has sided with him in every instance and I have to say, worked exactly as you might hope it would - it's quite endearing when things work the way you think they are supposed to.

It's about getting her to comply with it.

I think that's the issue here.

While I have no doubt the solicitor in question is willing to carry on as it's not in his interest to stop, if they are going to a layman he knows he can get away with it until it gets to court. Get a solicitor involved and IMO it would stop pretty sharpish.

While the view of solicitors is that they are expensive in my experience not having one has only caused more problems. It's not even that they will actually add anything to the situation but in the current situation her solicitor knows he has no comeback.

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I agree that solicitors 'try it on' when dealing with unrepresented parties.

Mark: I understand, from many years of dealing with a situation not dissimilar to your friend's, that although family law practitioners sign up to a code of conduct with a clear set of guidelines, they are laughably impractical, widely ignored and can be roughly summarised as 'hugz for all'.

Solicitors are supposed to be non-confrontational and not use language which would cause layman opponents distress, for example. How a situation where someone is taking your children, home and all your money can ever be non-confrontational I will never understand.

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I agree that solicitors 'try it on' when dealing with unrepresented parties.

Mark: I understand, from many years of dealing with a situation not dissimilar to your friend's, that although family law practitioners sign up to a code of conduct with a clear set of guidelines, they are laughably impractical, widely ignored and can be roughly summarised as 'hugz for all'.

Solicitors are supposed to be non-confrontational and not use language which would cause layman opponents distress, for example. How a situation where someone is taking your children, home and all your money can ever be non-confrontational I will never understand.

That set me off exploring. And I came across this:

http://www.sra.org.uk/solicitors/handbook/code/part5/content.page

Outcomes

You must achieve these outcomes:

(11.1) you do not take unfair advantage of third parties in either your professional or personal capacity;

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles:

(11.7) taking unfair advantage of an opposing party's lack of legal knowledge where they have not instructed a lawyer;

(11.8) demanding anything for yourself or on behalf of your client, that is not legally recoverable, such as when you are instructed to collect a simple debt, demanding from the debtor the cost of the letter of claim since it cannot be said at that stage that such a cost is legally recoverable;

(11.9) using your professional status or qualification to take unfair advantage of another person in order to advance your personal interests;

So I'm now off to grab a coffee and read this:

Investigation and enforcement

http://www.sra.org.uk/solicitors/enforcement.page

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(11.7) taking unfair advantage of an opposing party's lack of legal knowledge where they have not instructed a lawyer;

Well thats rather interesting. Could he not just represent himself - make sure its recorded - and if unsure about the legalities - ask the other solicitor to help him out ? May seem a bit out there seeing as they are representing the opposite party - but if you think about it - if they dont answer basic legal questions for you if asked - they are going against 11.7 above ?

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You may also wish to look up Resolution, which many solicitors working in this area (Family) are signed up to ...

Members of Resolution are required to:
  • Conduct matters in a constructive and non-confrontational way
  • Avoid use of inflammatory language both written and spoken
  • Retain professional objectivity and respect for everyone involved
  • Take into account the long term consequences of actions and communications as well as the short term implications
  • Encourage clients to put the best interests of the children first
  • Emphasise to clients the importance of being open and honest in all dealings
  • Make clients aware of the benefits of behaving in a civilised way
  • Keep financial and children issues separate
  • Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional
  • Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings
  • Abide by the Resolution Guides to Good Practice

Just be prepared for the reality of dealing with these people - especially if you have a grievance - to be nothing like the rhetoric.

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According to a search on that website the solicitors firm is indeed a member of "Resolution".

And so..

Although Resolution makes every effort to ensure that the Code of Practice is at the forefront of every members mind, some members may stray from the Code and the support we provide them through our Guides to Good Practice.

If you think a Resolution member hasn't worked within the Code of Practice you can make a complaint to Resolution. A complaint is a formal expression of dissatisfaction and our Complaints Procedure outlines what we will do.

http://www.resolution.org.uk/about_us/code_of_practice/how_to_make_a_complaint/

Lots of platitudes on that page. I wonder how far they go to implement their promises.

At the very least, awareness of its existence is is a good line to drop into a reply to said solicitors - good find.

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Can't he just get a solicitor to take a look at the letters he has been sent and send back a formal response saying a more professional version of, "Stop being a d**khead"? I suspect this would stop these things being sent.

As you hint at, I suspect she is trying to 'document' his wrongdoings by sending these letters so she can build a later case to present in court.

IANAL but I have watched a lot of 'Law and Order' on TV :P

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The Solicitor will tell you what is legal or wrong, but at the end of the day, the client instructs the solicitor. You are paying for him/her rather expensively, and they are your servants for a bit.

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Can't he just get a solicitor to take a look at the letters he has been sent and send back a formal response saying a more professional version of, "Stop being a d**khead"? I suspect this would stop these things being sent.

As you hint at, I suspect she is trying to 'document' his wrongdoings by sending these letters so she can build a later case to present in court.

If this "Resolution" thing has any clout then it might suffice to simply mention it, but, yes, the instruction of a solicitor may help matters. On the other hand if they're as useless as the lot she has instructed, as noted in this thread, it might simply become a money pit.

Let's see:

Members of Resolution are required to:

  • Conduct matters in a constructive and non-confrontational way < clearly in breach
  • Avoid use of inflammatory language both written and spoken < clearly in breach
  • Retain professional objectivity and respect for everyone involved < clearly in breach
  • Take into account the long term consequences of actions and communications as well as the short term implications < clearly in breach
  • Encourage clients to put the best interests of the children first < probably in breach
  • Emphasise to clients the importance of being open and honest in all dealings < may have done this, but it's not working
  • Abide by the Resolution Guides to Good Practice < clear fail

This isn't complex. A look at two or three of their letters, even without knowing the case detail, would confirm clear breaches of the above.

Time to go on the offensive.

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Aha - a complication. Firms aren't members of Resolution, individuals are.

The letters from the solicitor have an indecipherable squiggle for a signature and no name.

I wondered why, and now, I know why.

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Aha - a complication. Firms aren't members of Resolution, individuals are.

The letters from the solicitor have an indecipherable squiggle for a signature and no name.

I wondered why, and now, I know why.

There must be an "Our ref:" towards the top of the letter, phone and find out who the solicitor is who is actually dealing with your friends nemesis

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