Breaking the taboo – one family lawyer, two clients

We aren’t talking mediation, maybe collaboration, but could this approach be part of the future of family law in Scotland?

I hear your gasps and cries of anguish. I promise I do. Before they close off your mind to what’s possible, let me tell you a bit more. England is doing it. Before you run away in disgust and disbelief at the flagrant contravention of our own Rules of Practice around conflicts of interest, just keep an open mind for a moment to explore this.

We have all had that call from a client asking if we can represent both parties in a separation. We’ve all immediately engaged our legal minds to our Practice Rules…

Rule B2: Solicitors should not act for clients where there is a conflict of interest between them.

Rule B2.1.2: Solicitors shall not act for two or more parties whose interests conflict.

Rule B1.7: Solicitors must not act for two or more clients in matters where there is a conflict of interest between the clients or for any client where there is a conflict between the interest of the client and your interest or that of your practice unit.

…and then politely explained we cannot do that.

But what if there were a way we could?

A new approach

Have you ever heard of Resolution? It’s the English equivalent of our Family Law Association. As part of the organisation’s strategy to equip its members with new and innovative approaches to practice, it has developed Resolution Together: a new way of working where one lawyer advises a separating couple together. It was launched in 2022 in response to a growing call from members and the general public for a way in which separating couples could seek legal advice together, rather than from two individual ‘opposing’ teams.

Resolution sought the opinion of regulatory specialist Timothy Dutton CBE KC to agree principles, standards and guidance. Angela Lake-Carroll, Resolution’s head of standards, developed and delivered the standards, guidance and training, which is on offer to any member who would like to offer Resolution Together to their clients.

The strategy has been designed so that a lawyer acting under the scheme will act in accordance with the Solicitors Regulation Authority (SRA) Code of Conduct for English lawyers, under which essential and relevant core duties are:

• To act in the best interests of each client.
• Not to act in relation to a matter or a particular aspect of it if “you have a conflict of interest or a significant risk of such conflict in relation to that matter or aspect of it”, unless certain conditions are satisfied.

Sound familiar?

Following guidance

The SRA has also published guidance on conflicts of interest in which a conflict is best described as “a situation where your separate duties to act in the best interests of two or more clients in the same or a related matter conflict”.

With this in mind, Resolution has set some fundamental principles within the regulatory duties of a lawyer acting under the scheme:

• The parties wish to resolve matters consensually and to receive advice jointly.
• The parties have consented to sharing all relevant, including confidential, information.
• There does not appear to be any imbalance of power, vulnerability or other relevant factor which makes it inappropriate for the lawyer to advise both parties.
• The parties enter into a retainer agreement which confirms their consent for the lawyer to advise them jointly.

There is mandatory training on the principles and standards in order to practice Resolution Together, and a range of essential skills and competencies are required. There are also requirements around training on domestic abuse and safeguarding.

Resolution members can access a handbook that sets out the regulatory duties and how to comply with them. It also provides resources on how to manage areas of applicable regulation, a template retainer and agreement, and the codes and standards for other providers. Consideration has been given to the risk of negligence claims and the terms of the template retainer ensure that lawyers will be acting in accordance with joint and informed instructions from their clients, and in accordance with the relevant code of conduct.

Training is offered to members that covers all aspects of assessing risk, including risk related to conflict of interest, understanding ‘conflict’ in all its forms and presentations, and the presence of abusive behaviours with each client.

Mediation or collaboration?

Resolution Together distinguishes itself from mediation as the parties are provided with legal advice that they can both rely on to enable them to reach a just outcome. It does not consider itself to be a dispute resolution procedure, although knowledge of available methods of resolving disputes is central. It does envisage working with financial neutrals or family coaches/consultants as ancillary services, similar to collaborative law.

Is it groundbreaking, or is it a maverick approach? You decide. Would it not make sense to have another tool in the toolkit to resolve separations? The mediators among us know how amazing a successful mediation can be. Child welfare reporters know the positive impact it can have to be able to speak to both parents.

Reported benefits of Resolution Together include the rewards of working with a couple to achieve the best outcome for them; beneficial ongoing family relationships; lessening the impact on children; the speed of resolution and cost effectiveness. Couples who are looking for an amicable approach avoid the conflict that inevitably arises with two lawyers acting.

The Scottish landscape

I’m not advocating the approach here in Scotland until we have something akin to Resolution’s practice requirements, training and resources in place. Resolution has confirmed that we would need the Law Society of Scotland to be involved with a review of our Practice Rules – we cannot simply adopt the Resolution Together strategy. One issue that is immediately apparent is our Rule B2.1 guidance on acting in preparation of a separation agreement, which states:

“There is a clear conflict of interest and the same practice unit should not act for both spouses in relation to a separation agreement. Even if the spouses have agreed on matters, a practice unit should act for only one of them in preparing an actual agreement. If the other refuses to seek separate advice, the practice unit can deal with that spouse as an unrepresented party and follow the appropriate guidance.”

The parameters around conflict of interest need to be clearly understood and lines should not be blurred. The approach and appropriateness of one solicitor advising a separating couple will always depend on each case – every case is unique. Mediation or collaboration may be better options for some couples, or might be used in conjunction with the one-solicitor approach.

First of all, though, perhaps our Family Law Association in collaboration with the Society could consult regulatory counsel for advice and a review of our current Practice Rules. Let’s be brave and explore new approaches that could take us forward in helping those who are separating.

In the words of Timothy Dutton CBE KC, “Don’t confuse an argument or discussion with a conflict of interest.”

Hear more from Timothy and Angela Lake-Carroll, in conversation with Tristen Harvey, barrister and arbitrator, and Adele Ballantyne, relationship therapist and chair at Resolution Future Practice, in Resolution’s free webinar here. Your anxieties will be heard and addressed.

Written by Judith Higson, Executive Director and Head of Family Law, Scullion LAW, Accredited Family and Child Law Specialist, Accredited Mediator, Member of the Law Society Sub-Committee on Child and Family Law.