‘And do as adversaries do in law,
Strive mightily, but eat and drink as friends.’
Tranio – The Taming Of The Shrew
Advocacy in any family proceedings – that is both in the narrow sense of trial advocacy and also in the broader sense of how solicitors for either side approach each other on behalf of their clients – is very different from any other type of litigation, particularly where children are involved. The family courts do not take kindly to lawyers ratcheting-up hostilities by unnecessarily aggressive behaviour towards the other party.
It is often said good advocates are born and not made – but this has not always been my experience. Although it is true, otherwise talented people at the top of the profession (as in any craft) can often make the task look effortless to those just setting out in the law. But there is no doubt legal advocacy is a skill that may be learned like any other. Malcolm Gladwell’s ‘10,000 hour rule’ from his excellent book ‘Outliers‘ is definitely on to something here – or the sculptor Sir Jacob Epstein once said when asked how he was able to sculpt a great likeness of Ernest Bevan – ‘Well I take a block of clay and I just carve away all the bits that don’t look like Ernest Bevan’.
Poor advocacy is not only about inane blustering in court or trying to persuade a judge whilst wrestling with papers in the manner of a man trying to pitch a tent in a gale. The problem also arises with young lawyers leaving law school confusing their absolute duty under their respective professional codes of conduct to defend their client’s claim without fear or favour with the idea that their role qua lawyer is to defend to the death their respective client’s claim, however flimsy or preposterous. Which is an entirely different matter. It is doubtful if this is ever true – even in criminal law – but in family proceedings good advocacy is almost always about lowering the tensions between the parties rather than raising them – even when a client might think otherwise.
Managing a client’s expectations when tensions are running high is a great skill which not every lawyer (or judge) possesses. Advising a mother on ‘the best interests of the child’ and the 50-year old father who ran off with his 25-year-old secretary and who is only ‘over her dead body’ going to see the children again – is always going to be a difficult conversation. The danger arises where giving honest legal advice becomes overshadowed by the need to keep the cash rolling in. Giving ‘sunshine’ advice merely in order to keep the client on the books should never be considered acceptable – yet is too often the case – particularly on appeal. But if the correct advice to the mother is that, on the facts, the Family Court is going to allow the children to see the father alternate weekends and half the school holidays – then that advice must be given. And if the client decides that this is advice she does not like and she might do better instructing another lawyer – then so be it. Lawyers must always be courteous and tactful. But above all they must behave professionally and habitually this requires diplomacy and political skills in negotiation with clients and opponents alike. That said, I am reminded of two pieces of advice given by one of my literary heroes George Orwell in his essay ‘Politics and the English Language’ (1946): ‘If you simplify your English, you are freed from the worst follies of orthodoxy … and when you make a stupid remark its stupidity will be obvious, even to yourself.’ And: ‘Political language … is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.’
HKFLA – Code of Conduct
As a general rule a liberal application of common sense advice to one’s own client at the outset can go a long way to preventing protracted court hearings. The HKFLA Code remains a good place to start thinking about this.
Although this document was never adopted by the Law Society it still contains relevant guidance on how lawyers – solicitors and barristers – should conduct themselves in family proceedings. It may raise a wry smile among those practitioners who have been working in and around the Family Court in Hong Kong for any length of time and it is true the advice in this code is too often ignored. However, in my view it contains a great deal of common sense that even experienced family lawyers would do well to remind themselves occasionally. Since publication of course Hong Kong has seen the CJR reforms and there have been some more recent changes to procedure – for example FDR and most recently Practice Direction 15.13 – but although it is old advice it remains good advice.
Stephen Peaker reports on the Hong Kong Family Law Association’s Code of Conduct for family lawyers
At its Annual General Meeting on 16 July 1998, the Hong Kong Family Law Association (HKFLA) unanimously adopted its first code of conduct (the Code). In her final report as Chair of the HKFLA, Ms Sharon Ser described the introduction of the code as:
‘The most significant achievement this year for the Family Law Association … a document that clearly defines the approach that we believe lawyers truly sympathetic to issues concerning families and family law should adopt.’
The purpose of this article is to bring attention to the Code and explain its background and contents in the hope that members of the legal profession engaged in the practice of family law may choose to follow it.
The HKFLA gradually began to be aware of a widespread concern that solicitors and even the court process itself often added to the distress and anger involved in the breakdown of many family relationships. As a consequence, the HKFLA Executive Committee resolved in October 1996 that a code of conduct should be written to encourage a more conciliatory approach to work by solicitors in family law matters. The HKFLA believed that the situation in Hong Kong was similar to that in the United Kingdom prior to the introduction by the UK Solicitors Family Law Association (SFLA) of their code of conduct (the SFLA Code).
Following on from initial discussions with leading SFLA family law practitioners, an approach was made by the HKFLA to the SFLA for permission to use parts of their Code. However, from the start it was recognised that amendment would be necessary in order for the Hong Kong Code to fully reflect the unique nature of society in Hong Kong. Moreover, it was equally clear that the laws and the nature of legal practice in Hong Kong were, in many areas, quite different from that in the United Kingdom. The HKFLA was also aware that there had been difficulties in the UK enforcing the Code despite the fact that, as early as 1988, it had been endorsed by both the UK Judiciary and Law Society.
As a consequence, the HKFLA approached the Family Law Committee of the Law Society of Hong Kong (FLCLS) in October 1996 and suggested that the Law Society consider making the proposed Code a disciplinary matter. By so doing, it was believed that the problems encountered in the UK could be avoided locally. The HKFLA argued that the Law Society should not merely recommend the Code but make it mandatory for all those practising family law. In that way a breach of the Code would be a disciplinary offence.
Detailed discussions followed between the HKFLA and the FLCLS. Representatives from both organisations met to try to agree an acceptable format for the Code that the Law Society would be willing to back with sanctions for failure to comply. This was an ambitious and difficult step to attempt. As far as we were aware, no other professional governing body in any jurisdiction had adopted such a code as a disciplinary matter. To date, however, no such agreement has been reached. *
As noted above, in the United Kingdom the SFLA Code has received support from many members of the UK Judiciary. Judgments and orders for costs in favour of practitioners who conduct cases in accordance with the code of conduct are increasingly common. It remains to be seen whether the HKFLA Code will enjoy similar support in the Family Court of Hong Kong although Family Court judges are members of the HKFLA and a representative from the judiciary did attend the HKFLA’s annual general meeting where the Code was unanimously adopted. The Code has been submitted by the HKFLA to Mr Justice Hartmann for consideration. It has also been argued that adherence to the Code might reduce total legal costs and thereby benefit not only the parties themselves but also the costs incurred by Legal Aid and the Social Welfare Department whose funding comes from the public.
The Code of Practice
The benefit to the client of having a solicitor who follows the Code is apparent to the extent that it should save legal costs and unnecessary emotional distress to the client. The benefit to the solicitor is less immediately apparent but nonetheless substantial. Family law clients are private individuals with problems that need to be resolved as quickly and inexpensively as possible. A solicitor who approaches the case in a more conciliatory and constructive manner is far more likely to keep expenses down than a ‘litigator’ who sees the case solely in terms of civil litigation. A solicitor who resolves problems for clients using the Code is likely to enhance his or her reputation and thus increase business. It is often more cost effective for solicitors to have many cases, which settle amicably and with lower legal costs, than fewer cases that involve substantial litigation and high legal costs.
Whilst the introduction to the Code stresses that the HKFLA is committed to a conciliatory approach, it is important to point out that it is not a ‘strait-jacket’. It is recognised that a solicitor may under certain circumstances be forced to depart from the Code if the law or his or her professional duties to the client so require. What follows is a brief look at some of the more salient features of the Code:
Section 1 (General):
It is essential to provide the client with a copy of the Code either at the first meeting or shortly thereafter. If the approach of clients to family law cases is consistent with the Code, then it is far more likely that a solicitor will receive instructions to conduct the case accordingly. Although technically the Code is for members of the HKFLA, it is in many ways just as important that a client share the same view toward the conduct of the case. Even in those instances when a client initially declines to accept the Code, they might change their minds after proceedings become protracted and they have received one or more legal bills.
The hostile and aggressive correspondence that all too often distinguishes family law from other areas of litigation is well known. Whilst a solicitor may receive draft letters from a client with instructions to send them as drafted, a solicitor is under a duty to provide objective advice to the client and should try to consider the impact on the other party. The goal is to avoid inflaming an already difficult situation. The impact of hostile correspondence on a client needs to be carefully considered. Perhaps one of the more effective ways of persuading clients not to engage in hostile correspondence is to explain the negative effect it might have for the client and to send the client regular bills so that they are well aware of the legal costs that can be incurred by engaging in such correspondence.
Section 2 (Relationship with Client):
It is essential to emphasise to the client that the role of the solicitor is to advise and the role of the client to make decisions based on that advice. The Code does not compel a client to accept advice to settle a case where the client does not wish to do so. However, where a client does not wish to settle, it is essential that the costs involved in that decision are fully explained to the client.
A family law solicitor is not a psychiatrist, welfare officer or doctor. However, a solicitor also needs to recognise that many clients may not be psychologically ready for the divorce process and to proceed might very well prove harmful to the client. The solicitor needs to ensure that the client is fully aware of available services, particularly counselling and mediation, which may be more appropriate. This is especially true in those cases where a party does not accept that the marriage has come to an end.
Section 3 (Dealing with other Solicitors):
When a solicitor is engaged in a fiercely contested case between two parties waging the equivalent of matrimonial warfare, it is important that the solicitor not become personally involved in the hostilities. A solicitor should not denigrate another solicitor to a client regardless of his or her actual opinion. It is essential that clients maintain confidence in the legal system especially if settlement negotiations are to succeed. If a solicitor has already criticised his or her opponent to a client, any proposals made on behalf of the other party are more likely to be treated unfavourably by the client regardless of its merit. It is also important that the client realise that even where both solicitors are complying with the Code, there are bound to be perfectly valid differences of opinion which may not be capable of resolution other than by judicial adjudication. It must be explained that differences of opinion can exist without there being any criticism of the solicitor representing the other party.
Section 4 (Dealings with the other Party in Person):
The difficulties for a solicitor dealing with the other party who is acting in person are well known. Cases become unduly complicated, lengthy, and at times acrimonious when the litigant in person sends ‘undiluted’ correspondence that has to be conveyed to your client. This can lead to fierce instructions in reply. A solicitor must exercise restraint whilst still carrying out diligently his or her duty to their own client. Cases involving a litigant in person can often be the most difficult and for that reason (amongst others) a litigant in person should always be advised as soon as possible, and preferably in writing, to consult a solicitor.
Sections 5 (Court Proceedings):
The filing of an unannounced hostile behaviour petition in family proceedings is possibly one of the most aggressive and negative steps that can be taken in family proceedings. Acceptance that a marriage has broken down and the apportioning of blame are two separate and distinct aspects of the divorce process. However, many clients who are on the receiving end of a petition for divorce may reluctantly accept that the marriage has broken down but will rarely accept detailed allegations of fault. As a consequence, if a behaviour petition is to be filed, it is highly desirable that the contents of it, if possible, be sent to the other party or his or her solicitor with a view to proceeding by agreement.
It is a requirement when alleging adultery to name the third party unless leave of the Court to omit the name is obtained. As the naming of a third party often leads to difficulties in terms of service and higher legal costs, it is usually preferable not to name the third party.
Section 6 (Children):
The linking of the issues of arrangements for children and finances is often unavoidable as the spouse exercising the care and control of the children is typically going to claim an order for child maintenance. However, s 6.1 encourages both the client and other family members to regard the welfare of the child as the paramount consideration.
The Code of Conduct is not an instant solution to all problems in the area of family law. However, experience has shown that with the introduction of the SFLA Code in the United Kingdom, substantial improvements have been made towards a more conciliatory, constructive, and cost effective way of dealing with the majority of family law matters. There will always be difficult, hostile, protracted, and expensive matrimonial cases where the Code may have little effect. However, for the majority of cases it is believed that the Code will offer an alternative approach that will result in cases being resolved more quickly and without undue cost and emotional strain. The conduct of family law matters with reference solely to the rules of civil litigation may no longer be acceptable to potential clients paying legal bills, nor to the courts that enter judgments and orders for costs.
The Hong Kong Family Law Association
* The Law Society of Hong Kong has neither endorsed nor approved the Hong Kong Family Law Association’s Code of Conduct
Code of Practice
1.0 At an early stage the solicitor should inform the client of the approach he or she adopts in family law work.
1.1 The solicitor should ensure that the client appreciates that the interests of the children should be the first concern. The solicitor should encourage the client to see the advantages to the family of a constructive and non-adversarial approach as a way of resolving their differences. The solicitor should explain to the client that in cases where there are children the attitude of the client to the other family members in any negotiations will affect the family as a whole and may affect the relationship of the children with the parents.
1.2 The solicitor should encourage the attitude that a family dispute is not a contest in which there is one winner and one loser, but rather a search for fair solutions. He should avoid using words or phrases that imply a dispute when no serious dispute necessarily exists.
1.3 Because of the involvement of personal emotions in family disputes the solicitor should where possible avoid heightening such emotions in any way.
1.4 The solicitor should have regard to the impact of correspondence on the other party when writing a letter of which a copy may be sent to that party. He should also consider carefully the impact of correspondence on his own client before sending copies of letters to the client. The solicitor should avoid expressing personal opinions as to the conduct of the other party.
2. Relationship with Client
2.1 The solicitor should ensure that his relationship with his client is such that his objectivity is preserved and his own personal emotions do not cloud his judgement.
2.2 While recognising the need to advise firmly and guide the client, the solicitor should ensure that where the decision is properly that of the client, it is taken by the client and that its consequences are fully understood, both as to its effect on any children involved and financially.
2.3 The solicitor should always ensure that the client is fully aware of the impact of costs on any chosen course of action. The solicitor should throughout have regard to the cost of negotiations and proceeding.
2.4 The solicitor should ensure that the client is aware of the existence and range of all other services which may be of assistance in bringing about a resolution and helping members of the family through the process of family breakdown.
2.5 The solicitor should ensure that the client is aware of the value and availability of services such as counselling for the resolution of emotional and psychological problems and mediation as an alternative to the contested Court process.
3. Dealing with Other Solicitors
3.1 In all dealings with other solicitors, the solicitor should show courtesy and endeavour to create and maintain a good working relationship.
3.2 The solicitor should not denigrate the other solicitors involved in the case to the client.
4. Dealings with the Other Party in Person
4.1 In dealings with another party who is not legally represented the solicitor should take particular care to be courteous and restrained. Special care should be taken to express letters and other communication clearly, avoiding technical language where it is not readily understandable to the layman or might be misunderstood.
4.2 Wherever any party is not legally represented, that party should, in the interests of both parties and the family, be advised to consult a solicitor.
5. Court Proceedings
5.1 The taking of any action or proceedings which is likely to cause or increase animosity between the parties must be balanced against the likely benefit to the client and the family.
5.2 Where the purpose of taking a particular step in proceedings may be misunderstood or appear hostile, the solicitor should consider explaining it, at the first practical opportunity, to the other party or his solicitors.
5.3 Before filing a petition, the solicitor should consider with the client whether the other party or his solicitor should be contacted in advance as to the intention to petition, the ‘facts’ on which the petition is based and/or the particulars to be alleged, with a view to proceeding by agreement. A client should be advised that by filing a Petition and/or Statement of Arrangements without first attempting to agree the contents is likely to increase feelings of contentiousness and hostility, making any settlement much more difficult to achieve. It may also earn the disapproval of the Court and may have a bearing on the issue of costs.
5.4 The solicitor should advise the client that on receipt for approval from the other spouse of a Petition or Statement of Arrangements, that other than in exceptional circumstances, a client should not first file their own petition without giving their spouse at least 5 working days written notice of their intention to do so.
5.5 The solicitor should consider the desirability of applying to court for leave to omit the name when appropriate and discourage a Petitioner client from naming a Co-Respondent unless there is a compelling reason to do so.
5.6 A solicitor should conduct family law proceedings, including the preparation, advocacy and implementation, in the most cost-effective manner and in such a way as not to increase hostility unnecessarily and as to allow reasonable opportunity for settlement.
6.1 The solicitor should, in advising, negotiating and conducting proceedings, encourage both his client and other family members to regard the welfare of the child as the first and paramount consideration.
6.2 The solicitor should aim to promote co-operation between parents in decisions concerning the child, and should consider encouraging arrangements to be reached direct or through mediation.
6.3 Every effort should be made to avoid linking the issues of arrangements for the children on the one hand and finance on the other. Wherever possible and practicable they should be referred to separately.
6.4 The solicitor must remember that the interests of the child may not coincide with those of either parent, and in exceptional cases it may be appropriate for the child to be separately represented. This may be by the Official Solicitor, Guardian ad litem (in specified proceedings) or in the case of a child aged 18 or over but still subject to a Court Order by an independent solicitor directly.