Is it ok to be represented by a barrister who sometimes acts for social services?

Sometimes parents are anxious that their barrister is not on their side, or even that they might be in cahoots with social services. Sometimes, when you’re being given depressing advice, it can feel as if your lawyer is not fighting hard enough for you, and sometimes it can feel as if they are spending too much time talking to the lawyers for the “other side” which makes you wonder about their loyalty. But sometimes parents feel anxious even before they get to court because they have been warned not to trust lawyers. For example, in this recent blog post ex-MP John Hemming suggests that barristers who act for parents when they have previously acted for the Local Authority who has brought a court case against them have a conflict of interest, the implication being that there is something dodgy if you are being represented by a barrister who sometimes acts for social services.

John Hemming is wrong in his interpretation of the rules. There is no professional conduct rule that prevents barristers from acting for different parties in different cases (obviously we couldn’t act for more than one party in the same case). Most family barristers are self employed, and all those self employed barristers act according to the “Cab Rank Rule” which says they must accept all briefs offered, however unattractive (there are limited exceptions which I don’t need to go into here). This is to protect the vulnerable and those with unattractive or superficially weak cases, and those whose cases are financially unappealing. The rule ensures two things : firstly that everyone who needs it has competent legal representation and secondly (this is more of a positive side effect) it ensures that a barrister representing a party has rounded experience of the sort of dispute in question, from all angles.

The important point is this : you need a lawyer who will fight hard for you. You also need a lawyer who will tell you bluntly when you are being stupid or your position is hopeless. And you need a lawyer who understands how the opposing team will be thinking, what will worry them, what they might see as their strengths and weaknesses, and where they might compromise. Having a lawyer who has acted for “the other side” is a strategic advantage.

But let’s just assume for the minute that John Hemming is right : before a barrister can act for you, they need to be sure you have given informed consent to me acting. How should you choose? What should you think about before giving your “informed consent”?

Competence and experience: Look at their chambers profile, CV, Legal 500 and Chambers & Partners profiles, Linkedin, twitter, blog… More importantly – ask your solicitor. Wherever possible they will choose someone who they have positive experience of, who has done good things for their clients before, and they will try and find someone who will suit the case and suit you. It’s okay to ask your solicitor to talk to you about the choice of barrister (although this isn’t always very practical for urgent hearings).

Rounded caseload: I would suggest it is generally a good idea to have a lawyer who does a bit of children work, a bit of parent work and a bit of local authority work. Any lawyer who does too much of one thing loses perspective a little. The job I do for parents is better because I know how Local Authorities think and act, and the same applies in reverse – I am able to give each better advice because I can make better predictions and manage the dynamics better.

Tells it like it is: Choose a lawyer who is prepared to tell you what you don’t want to hear. You can choose a lawyer who is a “Yes man” (or woman), but that is actually really risky. You NEED to know where you are going wrong, what your weak points are, where you need to change tack and have a rethink. It’s a really important part of a lawyers job – to deliver unpalatable advice and (bluntly) to call “Bullshit” when required. Once you’ve had the advice it’s up to you to give the instructions – you should not be afraid to say “thanks for the advice, but no thanks I’m going to do the opposite”, but if you’ve gone against the advice the outcome is your responsibility. But however daft your position it’s still the lawyer’s job to make the absolute best of the case you want to run.

Choose a lawyer who listens: Your lawyer will be busy at court and there might be a certain amount of running around and meetings between lawyers – and a lot of waiting around for someone to come and tell you what’s happening. This can be frustrating and anxiety provoking but it is necessary. It’s ok to ask your lawyer to keep you posted. It’s also ok to ask your lawyer not to go into court without you being present (sometimes called “counsel only” discussions. I do my best to try and keep clients posted and always try to request that parents come into court for all discussions, and I don’t mind being reminded when I slip up (it does happen). It’s your case. It’s ok to do as a client did the other day and to say “I don’t feel as if you’re on my side”. We talked about the difference between my private advice (negative) and the fight I would (and did) put up in court (feisty). And she was reassured. Your lawyer should not be dismissive of your anxieties about this.

Road test: And if you aren’t happy with your barrister after a hearing you can ask for a different one through your soliciitor. Do think before you sack them though – will you be better off with a different barrister or was the outcome of today’s hearing something they could not have prevented? A new barrister will have to start from scratch, so you’ll have to tell them everything again, and they won’t have first hand experience of the previous hearings, which can be important.

You can ask your solicitor to instruct a barrister who doesn’t act for a local authority, but you will find these are few and far between. The question you will need to ask is if no local authority wants to instruct this barrister why do I?

It’s probably better to ask your solicitor to instruct a barrister who has a good reputation for fighting for parents, but in truth your solicitor should be doing this as a matter of course. They might not always think to consult you about choice of barrister, but you can ask for input. Sometimes time constraints mean they will have to choose quickly without reference to you to ensure you have someone booked.

It’s worth remembering (as an example) that I have a good reputation for fighting for parents, but I am also regularly instructed by Local Authorities, and on behalf of children, and for extended family members. When I go to court and do my damndest for a parent client it doesn’t result in me losing work from the Local Authorities who are watching and receiving my incoming missiles. And when I act for Local Authorities the solicitors who are involved in the case for the parents, and who sometimes instruct me, know from experience that it doesn’t mean I won’t fight really hard for their next client when they instruct me. They just know I’m a lawyer who fights hard and who acts on instructions. That is what ALL clients want.

As often as I give unpalatable advice to parents about how idiotic they are being, I give unpalatable advice to local authorities too. That is the essence of the independent bar. When I’m YOUR barrister, I’m giving your case everything I’ve got. And the same goes for my professional colleagues (I’ve met a few bad apples but they are few and far between).

If you are worried about any of this talk it through with your solicitor, and if you feel it would help it is sometimes possible to arrange a conference before the hearing so you can meet your barrister face to face (this isn’t always practical given the way cases are timetabled and restrictions on funding, but you can ask).

Footnote : John Hemming says he is going to ask the Bar Standards Board to “clarify” the professional conduct rules. If he lets me know of any such clarification I’ll post it here.

 

Post script Mon 16 May 16 : the points about rounded caseload also apply to private law disputes. I think parents sometimes look for someone who always represents dads or always represents mums – I’m not sure this is the best way of selecting your barrister. There are some differences in private law – there is legal aid for victims of d.v. and so those represented under legal aid are predominantly but not exclusively female. This means that there is a preponderance of instructions from women / victims / primary carers, although of course in some families the stereotypes are reversed or not applicable and in others there are funds to pay for a lawyer regardless of eligibility for legal aid. In my view the assistance of a McKenzie Friend who comes from a “dads” perspective brings with it some of the same risks I identify above.

Post script no 2 Tues May 17 : See excellent sister article by Dan Bunting here : Should I worry if my barrister works for the CPS in other cases?

Splitting the assets

I had a little trip to the smelly old smoke yesterday to record a programme for BBC Radio 4. The programme is called Splitting the Assets and is airing on Radio 4 at 8pm on 3 Feb (repeating on the Sat night too I think). It involved yours truly, Sir Paul Coleridge (retired HCJ, Marriage Foundation etc), Nicola Mattheson-Durrant (Professional McKenzie Friend) and Marc Mason from the University of Westminster discussing the experiences of litigants in person dealing with financial remedy cases in the family court. The programme is structured around clips of interviews with litigants in person telling how it was for them (generally not great). There was lots more I’d like to have said but I think it will be an interesting, if depressing, listen. I don’t know if the degree of adaptation that has gone on in terms of judge’s handling of cases and changes in approach to litigants in person will really come across – there are genuine horror stories, and going to court is horrid and stressful whether you are represented or not, and whether your judge is friendly and efficient or not (my experience is mostly they are but there are of course exceptions) – but I hope that the programme will not make litigants even more anxious. There are resources out there to help you, whether you have a lawyer, a bit of advice here and there, or whether you go it alone, perhaps with the support of a friend or by paying for a McKenzie friend. A reminder that resources are out there can be found here : www.familycourtinfo.org.uk which contains both links local to the Bristol area and nationally applicable resources and information.

You can read more about the programme on the BBC website here.

Amended exceptional case funding guidance

Amended Guidance on exceptional legal aid (s10 LASPO) has been published here.

The revised guidance requires case workers to approach the assessment of each case on an open-minded basis, with no presumption about the proportion of applications that are likely to succeed. The basic test set out by the Court of Appeal in R (Gudanaviciene and others) v Director of Legal casework and the Lord Chancellor [2014] EWCA Civ 1622 features prominently and case workers are reminded at several points that:

“The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness”

Particular factors to be weighed in the balance are:
• How important are the issues at stake?
• How complex are the procedure, the area of law or evidence in question?
• How capable is the applicant of presenting their case effectively?

It will be interesting to see if and when this translates into a shift in the statistics on grants of exceptional case funding in family cases.