Pick 'n' mix services

The number of divorces in England and Wales is increasing. In 2012, there were 118,140 divorces, an increase of 0.5 per cent since 2011, when there were 117,558 divorces. The figures come from the Office for National Statistics, who accordingly estimates that the percentage of marriages currently ending in divorce is approximately 42 per cent.

These statistics must therefore be analysed in the context of clients who are becoming more and more cost sensitive, increasingly savvy as to the breadth of services available to them as and when their relationship (and particularly in the context of this article) their marriage comes to an end.

A growing estrangement

Price, more commonly known as costs, is pushing an increasing number of clients to assume more responsibility for their divorce and the related financial issues. It forces them to consider the extent to which they are able to instruct a solicitor, if at all.

Many will also consider alternative forums such as mediation and the collaborative process. It is also fair to say that a number decide, or perhaps are forced due to financial constraints, to retain ownership of the process themselves. We are therefore noticing a trend of DIY or part-DIY divorces.

What do we mean by this? Essentially, individuals are literally doing it all themselves. They are drafting the petition, filing at court and thereafter making the necessary applications to proceed through to decree absolute. They are negotiating financial settlements directly, they are agreeing levels of ongoing maintenance, they are determining shares in the family home. Essentially, they are going through the whole process without the help of a solicitor, mediator, collaborative lawyer, or any other professional adviser.

For example, one website offering DIY services revealed that 15,000 individuals used their outfit to initiate divorce proceedings last year. There is, of course, no way to substantiate this figure but it is certainly indicative of the numbers who are, so to speak, going
it alone.

Ad hoc services

The next step up from DIY is part-DIY, whereby the client intends to run their case themselves, but would appreciate ad hoc advice throughout. For example, it is becoming more common for clients to seek preliminary advice in relation to the divorce process, how it operates, the grounds for divorce, the procedure and time scale, and so on. Thereafter, an increasing number of clients are dealing with proceedings themselves.

That being said, these clients may still require advice in relation to the finances, whether in light of a without prejudice offer received from the other side or, if form A has been issued, as court deadlines start to loom.

This forces us to address the way in which we would normally conduct our cases with the 'standard retainer', namely those dealing with the divorce and finances from the outset and continuously throughout. We are obliged to provide 'unbundled' services, whether by way of discrete advice about a specific step or steps, in a case or a specific issue, or by checking or drafting documents.

These DIY-ers, who increasingly require unbundled services, present challenges to the family practitioner. As a solicitor it can be concerning that you haven't got the full picture. As the client dips in and out, it can be a worry that they are not divulging all the information you require to provide accurate and personalised advice, specific to their circumstances. That, coupled with the correspondence from the other side not being available to you, can cause concern.

Guidance

Given the rising trend, the Law Society has recently published a very helpful practice note, 'Unbundling Family Legal Services', which helps address these issues. It is aimed at family practitioners who want to offer unbundled legal services to their clients (i.e. partial retainers). It seeks to provide advice on best practice but also point out potential risks and how to minimise them.

The following are worth a specific mention. Part six of the practice note also references 'key points for providing an unbundled service'.

• If you have concerns about insufficient or poor quality information provided by the client, you should obtain additional information or clarification required from the client before offering any type of legal assistance. If the client is unable to provide this information, you should not advise. (Part 4.1).

• You must ensure that you meet all of your regulatory requirements as set out in the SRA Handbook, including achievement of outcomes concerning conflict and confidentiality, even if you only advise the client on a single occasion. (Part 4.3.1).

• When providing unbundled services, you should not go on the court record as acting solicitor, even if you are providing advocacy. (Part 4.3.2)

• You should notify your PII insurers of your intention to provide unbundled services. (Part 4.5).

Ultimately it is important to manage expectations at the outset and throughout. This is particularly important at the preliminary meeting and when terms of business are delivered. Crucially, when clients are seeking sporadic advice, it would be advisable to ensure that your retainer/client care letter is very clear.

It would be sensible for the letter to set out clearly what you are instructed to do, as well as what you are not instructed to do. Solicitor and client are both then clear as to their respective roles.

Part four of the practice note goes further: 'You should clearly express what is covered by the retainer, so that there is no ambiguity or misunderstanding. You have an overriding duty to act in the client's best interests. If you are concerned that it is not appropriate to limit the retainer in the circumstances or that your client does not understand the consequences of the limitations, then you should not offer an unbundled service.'

In addition to your client care letter, it might be appropriate to generate standard precedent letters dealing with different scenarios. This will not only increase your efficiency, but also ensure that your role in the solicitor-client relationship is clear.

Establishing the nature of your retainer is key, particularly in the unlikely and unfortunate event that something goes wrong and the client has cause to complain. From a risk perspective, it is crucial that you do not go beyond the remit of your instructions.

The practice note suggests that 'you should minimise your risk by clearly defining the limits of the work you are agreeing to do. For added clarity, you should also include a list of the things a solicitor might traditionally be expected to do but are not included in the unbundled service agreement.' The specific example cited refers to negotiations with a third party.

Ultimately it is a case of shaping your advice to the client's specific circumstances and their unique retainer. The market place dictates that we must not only provide advice, but also a service, one that is personalised and professional and in tune with the client's requirements. This article is in no way intended to suggest best practice, rather helpful tips and suggestions that may prove useful in the future. 

Joanna Farrands is a family partner
at law firm Barlow Robbins