We are family - a guide to risk management for family solicitors

When it comes to managing risk, there are some pain points that can be more acute in certain practice areas. Here, Anna Forsyth and Matthew Thomson from Lockton shine the spotlight on family law.

The family lawyer must wear a multitude of hats: lawyer, counsellor, mediator, psychologist – the list goes on. Each case has different circumstances, and each client requires application of a variety of skills. In particular, there is a very real psychological aspect to the role of a family lawyer. When dealing with sensitive issues and potentially vulnerable clients, it is no wonder that some risk management procedures become even more essential.  

Conflicts of interest

Conflict checks at the earliest stage possible can save embarrassing and potentially costly issues. All family lawyers know the scenario: you take a call about an initial enquiry, then realise that you are talking to the spouse of an existing client. But what if the problem occurs at a later stage? What if you have a large team and one solicitor takes a meeting with one spouse or partner while a colleague provides advice to the other? You are then faced with withdrawing for both clients, and likely foregoing fees yet to be billed. Robust conflict checks will avoid this. Make sure a spouse or partner’s full name and address are put through your database at the earliest stage (and make sure you have all surnames they are known by). Do your best to avoid giving any advice before a new client has been properly conflict checked.

Letters of engagement

These are of course an essential requirement for all practice areas (see Law Society of Scotland Rule B4: Client Communication). A letter of engagement is the first opportunity to set out in writing what you will do for a client. It is also an opportunity to set out what you won’t do. A family law matter can cover a myriad of issues, so be clear with your client which of those you are dealing with. If they have complex share schemes that may need to be addressed, will you be advising on tax consequences, or will they need to instruct expert tax advice at some stage? Make sure the client does not assume that this will be encompassed in your fees, particularly if you have a fixed fee arrangement.

A well-crafted letter of engagement can help to manage a client’s expectations. Dealing with a family law matter is something that most clients will only do once in their life, and it follows that they will be unfamiliar with the work involved. They may be overwhelmed by the situation, or conversely they may expect a very simple process. How many readers’ hearts have sunk as they hear another new client tell them that “it’s very straightforward, we know exactly what we want to do”! Try to use your letter of engagement to give the client a realistic guide.

Scope creep can also be prevalent in family law matters. One minute you are advising a new client about the division of their matrimonial property, the next minute you are in a lengthy conversation about contact with their child. Or, you realise they need employment advice as they are an employee of their spouse’s company. Try not to let all this drift without discussing the scope of your instruction. The complaints regarding fees are bound to follow. For further thoughts on scope creep, see the Journal article, ‘Don’t Let Scope Creep Up on You’.

Client communication

Communication with clients is always important, and never more so than with family law clients who may be experiencing the most stressful period of their life. It is important to make sure that you are not making assumptions that a client has understood and taken in everything you are telling them (“but I didn’t know I wasn’t keeping the bank account / TV / goldfish”). It is best practice to build in time to make sure that they understand the advice given and what they are instructing you to do in a negotiation. Make sure that all substantive advice is put in writing, even if you have also discussed it verbally. Sometimes a claim that centres around a failure to give advice comes down to whether that advice was recorded.

When it comes to minutes of agreement, set aside time to go through each clause with the client to make sure there is no misunderstanding. Set out any arithmetic for them, partly to sense check it yourself and partly so that the client understands what it will mean in reality.

Keep detailed file notes of all discussions. These can be essential if you find yourself defending a claim.

Door of court settlements

Family lawyers inevitably have to deal with settlement negotiations just as a proof is about to start. The challenge in this situation is to make sure that the client understands the advice they are being given and the options available to them while in a highly pressurised situation. Preparation is key. Take the time to check that your client understands what is happening, and whether they have questions before you agree settlement. If possible, have a colleague with you who can take notes of discussions outside court. Try to anticipate possible settlement terms prior to a hearing, and have a draft Minute of Agreement prepared. This will help to identify the potentially thorny issues and consider the possible solutions in advance. These may include:

• the impact of any judicial expenses
• time allowed for payment of capital sums
• interest to be paid on delayed payments

Where the client has had adequate explanation in advance, they will be able to give informed consent to a settlement and misunderstandings are much less likely to occur.  

File reviews and a second pair of eyes

Robust file reviews and a second pair of eyes check on all written agreements are effective risk management tools to help avoid errors or omissions. However, remember that the colleague performing the check needs to have enough background information and knowledge of negotiations to review an agreement meaningfully.

Wellbeing

Wellbeing at work is so important for risk management. The real reason behind a practical error that leads to a claim can often be stress, work overload or anxiety surrounding work issues. This can be amplified for family lawyers who are dealing with clients experiencing high stress situations and may project that stress on to their lawyer. In some extreme cases there is also a very real wellbeing issue surrounding vicarious trauma where clients are divulging their own experiences to their lawyer (this is of course true of several other practice areas).

An increasing awareness of these issues has led to initiatives like the Law Society of Scotland’s Trauma-Informed Lawyer Certification Course, which as well as helping lawyers to adapt their approach to take account of trauma in clients, also teaches skills to help preserve your own and colleagues’ wellbeing and protect against vicarious trauma. On a more general level, good supervision that is supportive, and an open culture that allows fee earners to speak up if they are under stress or have made an error, will make a huge difference.  

Having these risk management tools in place can go a long way to helping family lawyers practice effectively in an area of the law that is as rewarding as it is challenging.