In this special post, consultant solicitor Lewis Hulatt explores the value of professional legal advice
We solicitors get asked a lot of questions. Let’s consider two recent ones I have received:
“These days, do I need a solicitor when I can look up all I need to know on the internet?”
“I want to help my daughter and her husband buy a place to live, but I suspect he is a wrong’un and they’ll get divorced. Is there anything I can do to protect my money to stop him taking and squandering it?”
Answering the second question somewhat addresses the first.
Some might say that lawyers are ‘a necessary evil’, like doctors and undertakers. Many years ago, I was consulted by the father of a man going through divorce and finance proceedings brought by his wife. The father had bought a home for his son when he discovered he was going to be a grandad. But with the marriage being rather rushed, and little known about the child’s mother, he consulted a lawyer to protect his investment in case they split up.
A property lawyer drew up the correct paperwork to retain the equity for the father, just in case his fears about the durability of the marriage were well-founded. It cost the father to have that document drawn up, but it proved money wisely spent.
Unlike his father, the son had taken the view that he could find out all he needed to know online and that ‘lawyers should be kept as poor as their morals’ and so not be hired.
It transpired that the wife had not been fully aware that the home she wanted to take from her husband was owned by her father-in-law. The property lawyer who bought the property for the son had served his client (the father) well and not only had things been done fairly and transparently, but the file clearly showed that to be the case.
Victory in court
The divorce ended up going to court. To be safe, once we had established the facts of the case, we asked counsel to confirm our understanding that the equity in the property remained the father’s money. Despite that particular barrister being a nationally-renowned expert and a respected writer on property and trust law, he charged only a modest fee and produced an opinion that was overwhelmingly in our client’s favour. Again, a very cost-effective course of action.
Of course, we won the issue of the home ownership on the first morning of the trial: the house belonged to our client and so was not matrimonial property that could be shared with the wife.
Why tell this tale?
There are many ways this story provides answers to both the above questions.
Before the internet, the law could only be found in libraries and even then, the reference books might not be up-to-date outside of places of legal education, the offices of solicitors, the chambers of barristers and similar venues.
To enable law books to be updated, the publishers introduced loose-leaf books designed to accommodate regular updates – often monthly in the case of particularly dynamic areas of law. This required some poor soul to replace pages in accordance with the updating schedule. As a trainee I often got lumbered with the job but as I became more senior I was able to avoid it. The rewards of early promotion to partner!
We were the gatekeepers of legal knowledge and like the keepers of mysteries, we expected to be paid for what we knew. To find out ‘the law’ you needed a lawyer, although later on the Citizens’ Advice Bureau (CAB) partly replaced its rota of volunteer solicitors with a knowledge system. We helped people for free at the CAB and back in those days, people might qualify for legal aid under the Green Form Scheme if they could come to our offices instead.
In other words, without a lawyer or a very convenient and well-updated library, people could not know ‘the law’. Reading books and articles was not really enough to enable people to know how to apply any law that they had found.
The internet makes law available, but it does not provide the context needed to apply it much of the time.
I have been a judge in competitions for students in local law faculties. Through that voluntary work, I’ve met and discussed legal education with law lecturers and those involved in educating people who want to become lawyers or who want to understand the law as part of a wider portfolio of knowledge to use in their work. I recall discussing the availability of internet legal resources with a local professor who explained that, as well as students needing to find ‘the law’ on something, they need others skills – interpretation, assessing the currency of information and the trustworthiness of a source. That, he said, was one of the key skillsets that law students need in the digital age.
If law students need to be constantly challenged as to what law they have found, how up to date it is and whether the source can be trusted, then lay people who do not have experience or expertise in this area are even more likely to go astray.
We lawyers are no longer just (or mainly) the gatekeepers to legal knowledge. Instead, we are engaged for a whole range of other skills and personal attributes.
Negotiation and issuing proceedings
The son who was the respondent in the divorce we discussed above knew he did not own any property, but had simply been allowed to live in a property owned by his father.
He did not assess the situation, nor set out the legal position in a clear way, and his wife negotiated on the basis of their resources, not those of his father.
She went into proceedings without legal advice and was similarly clueless about what she was doing and whether it made sense.
Once the process started, nobody took control of what needed to be done, nor worked to stop the train proceeding far down the track towards the buffers of a full trial.
Completion of court forms
The son and his wife had both done a very poor job of filling in the Form E statements, setting out their circumstances, their assets and what factors should be taken into account.
Key points missed
The son failed to clarify the property ownership situation, or provide evidence to the family court concerning his non-ownership.
By not making that clear to the judge, and by not getting evidence on that point, the judge was unable to form a proper opinion about the case and did nothing to discourage the wife from her application.
Researching and understanding the law
The son was not uneducated, but when researching the law, he failed to grasp the very basic point that the family court shares property owned by the parties and not the assets of other family members.
The son failed to seek evidence about the trust from his father, nor from the solicitors who handled the property process. The wife did not seek evidence at all and claimed the house was owned by her husband without any proof of that.
With no evidence, there was nothing for the Judge to base an opinion on, other than what the parties had stated on their Form Es and what they added when speaking in court.
Representation in court
The wife was represented, but only by a barrister hired for that hearing. Her barrister also did not know any more than was on the court papers and was not aware that there was compelling evidence that the property was owned by the father.
Neither our client nor his son understood the way a judge behaves in court and mistook the judge saying ‘yes’ to points made by the wife’s barrister to indicate that the judge agreed with what the barrister had said. The judge was actually only indicating that he had heard the points the barrister was making. ‘Yes’ is much more natural than ‘noted’ when speaking in front of three lay people and just one lawyer, but the father and son believed that the judge was agreeing with everything the wife put forward.
With no experience of what happens in court, our client and his son thought they had been directed to do what the barrister had suggested and give the house and money to the wife.
Making legal points
The son had failed to understand the legal trust set up by his father’s lawyer, and did not contradict his wife’s claims.
Section 25 of the Matrimonial Causes Act 1973 puts the focus on case-by-case discretion, not a ‘win-lose’ all-or-nothing situation. Once a party has applied to the court, the judge needs to decide based on facts of the case, not rule in favour of one person and against the other.
The son did not even explain that they ‘shared care’ of their child – again, a very important point missed.
So…why might I need a lawyer despite the internet?
Here is the short answer. The following are the things solicitors do which go beyond merely reading law:
•Negotiating and issuing proceedings
We know the factors to be considered and the range of likely outcomes. We are experienced at negotiating and refining agreements.
•Completion of court forms
We understand that forms need to be completed and we know how to provide information on them in an effective manner.
•Making and assessing legal points
We can assess what points are strongest and whether the other party has a valid counter-argument. We also know what points are likely to be considered important and we will make the best of the material we have.
•Researching and understanding the law
Once the facts of a case are established, we apply the law to those facts. Sometimes that means looking into unusual circumstances. If we do not know something about a particular law, we can find somebody who does.
We know what evidence should be sought so that the court has a basis upon which to make a decision or so that negotiation can take place.
•Representation in court
Should the case go to court rather than be settled in negotiations, we solicitors can arrange representation if required. As with other experts, we will help clients get the best help at court that we can. That may be ourselves or it may via our wide network of barristers.
•A wise investment
Shakespeare’s wise fool said that free advice was worthless “like the breath of an unfee’d lawyer” – i.e. legal advice was only to be relied upon if the lawyer had received a fee for giving it. There is a degree of truth in that: for advice to be relied upon, there should be a formal retainer between lawyer and client so that the extent of responsibility is properly understood on both sides.
Yes, law firms must charge in order to keep their responsibilities to the regulators, to have a viable business model and a sustainable future, but the culture of law firms can differ when it comes to fees.
Major Family Law provides an assessment as to whether we can help free of charge. Our clients do not start to be charged until there is a formal retainer in place and an estimate of what work is usually required to deal with the problem that has been identified.
We cannot promise to be cheap, but the cost of negotiation and representation is usually a much smaller than fixing serious problems later, as we saw in the scenario above.
Not engaging a lawyer from the outset was a false economy for the family because they spent considerably more than if the son had put away his pride and prejudice and engaged lawyers who could have seen off the meritless case of the wife far earlier.
To quote the sages: you get what you paid for!
Lewis Hulatt joined Major Family Law in 2016 as a consultant working with clients in both the south east and the north of England. In addition to his many years of experience as a solicitor, Lewis is a trained mediator and often advises on how to resolve disputes outside the courtroom.