From about 1990 until I stopped practising in 2009 I was a member of Resolution, the organisation that originally went under the rather more explanatory name of the ‘Solicitors Family Law Association’. For those who don’t know, the ethos of the association is to promote a constructive, non-confrontational approach to dealing with family disputes.
As part of that approach Resolution has a Code of Practice that its members should follow. The Code is revised from time to time, and a new version was launched this week. As Resolution themselves say, the world was very different when the organisation was formed in the 1980s, and the revisions to the Code are designed to reflect how things have changed since.
Whilst I was a member I believed in the Code and tried to adhere to it, but now I wonder whether things have changed so much that the Code itself is redundant.
I began practising as a family lawyer in the early 1980s. Back then family law was very much regarded as a ‘lesser’ legal discipline than other areas of law, and many who practised it did so as a ‘side-line’ rather than as a specialist. For example, many lawyers who did general civil litigation work also did a bit of family law. But family law is of course a very different discipline to civil litigation. In civil litigation, for example personal injury work, the lawyer’s duty is simply to get as much as they can for their client, pretty much without regard for anyone else. This can entail, or at least favour, a very aggressive approach to the litigation.
Even where lawyers did specialise in family work many of them still held to the aggressive approach. That approach had been the way for all lawyers since time immemorial, and they saw no reason to change, oblivious to the damage it caused to those involved in or affected by the litigation especially, of course, the children.
But how many family lawyers adopt such an aggressive approach nowadays? Things have moved on and we live in more enlightened times, thanks in part to the work of visionaries such as Resolution’s founder John Cornwell.
I look at the latest version of the Code (you can find it here) and I find it difficult to imagine many family lawyers practising now who do not follow the advice contained in it, irrespective of whether they are Resolution members, or have even read the Code. How many, for example, use inflammatory language? Any judge seeing such language would take a very dim view of it.
Or what about the advice the Code gives to put the best interests of any children first? It is now a quarter of a century since the Children Act made the welfare of the child the paramount consideration. Can there be any practising family lawyers worth their salt who do not put the interests of the children first?
I will pass over the exhortation in the Code to “act with honesty, integrity and objectivity” – any family lawyer who doesn’t will soon find themselves in deep difficulty – and move on to the advice to “help clients understand and manage the potential long-term financial and emotional consequences of decisions”. Surely, every family lawyer now recognises that this is part of their duty to their client? Do they really need to be told? The same goes for the advice in the Code to “use my experience and knowledge to guide clients through the options available to them”, doesn’t it?
Then there is the advice to “listen to and treat everyone with respect and without judgment”. This, I think, refers in particular to dealing with litigants in person. However, in these post-legal aid days virtually all family lawyers come across litigants in person, almost on a daily basis. Hopefully, therefore, they will long since have realised that they must deal with them, even if this can be extremely difficult. To do so, they must treat them with respect.
Finally the Code advises members to continually develop their knowledge and skills. Good lawyers have always been aware of this, but for those who weren’t professional bodies have since the 1980s brought in the requirement for “continuous professional development”. No one needs to be told any more.
Now, I haven’t practised for the last seven years, so I don’t have recent experience of dealing with other family lawyers on a professional basis. I may therefore be wrong about the way in which they now approach their work. However, surely the ‘dinosaurs’ who still use the old-fashioned aggressive approach must be approaching extinction? If that is the case, then perhaps the Code has run its course, and it too can be consigned to history.
Photo by numb3r via Flickr under a Creative Commons licence.