Please note this content was originally published in the Family Law Journal, October 2021 edition, best practice section.
Working as a family lawyer is an immense privilege and an immense responsibility. An immense privilege, because we get to know our clients so well, they entrust us with some of the most personal aspects of their life. An immense responsibility, because so much depends on the way in which we advise our clients, whether we’re able to lead them to amicable solutions, and help them find benign ways of resolving matters, or not. The burden is especially significant on us when there are children involved, who are always affected by the way in which divorces are conducted.
These twin principles of privilege and responsibility underpin the way in which most family lawyers now work. And this article is written at a time when society is mindful of wellness, and the mental and physical health of everyone who works within family law. It’s fantastic when people lead from the top, and the advice given by the President of the Family Division has been a massively promoted wellness for all of us who work in this field.
To give just one example of how things have changed, the President’s prohibition of correspondence before 08.00 after 19.00 and over weekends has been a refreshing tonic. See para 13 of The Road Ahead dated 8 January 2021, view here.
Occasionally one does receive correspondence from truculent lawyers who either don’t know or don’t care about its prohibition, but a short note back to them reminding them of the provisions normally does the trick.
In composing and planning this article, I’ve taken soundings from a junior lawyer in my firm, from a partner in a different firm, from a senior clerk in a barristers Chambers, and from the senior court clerk in my firm, Christopher Nanton. It’s with his general advice that I begin this piece. "I prefer the friendly approach", says Mr Nanton. "I start the conversation with a smile, I’m not their enemy. I try to be their friend, to discuss things amicably. It’s a softly softly approach in the first instance that I prefer. I gauge the response, and if the response is aggressive, then I have to up the ante". The wisdom of that advice informs the rest of this article.
So, how should we deal with clients whom we find difficult?
Prevention is better than cure.
- Know your client. Understand the kind of client that you’re taking on. Go into it with your eyes open. Do your due diligence.
- Remember that separation and divorce are inherently stress-inducing experiences, or they can tend to be. They tend to provoke feelings of worry which may destabilise and concern the most measured of our clients. You have to be really understanding in this job. Many of our clients may need counselling.
- Get things straight from the very beginning. Have clear client care letters and engagement letters, which spell out your responsibilities and the limitations on what you’re going to be doing.
- Have money on account of costs at all stages. There is nothing that concentrates the client’s mind so much as the knowledge that her or his money is depleting when lawyers‘ time is being engaged.
A disciplined approach to costing and pricing tends to make clients much more reasonable than they would otherwise be.
- The best way to embed a client is to induce a bedrock of trust and respect in the relationship. Things go wrong when the client begins to lack trust in her or his lawyer. Most often that trust can be repaired – the way that we communicate with our clients is key, we’ve got to get that right, and understand how a client likes to be spoken or written to.
- Remember the art of good communication. There are ways of conveying news.
Say you’ve had a conversation with the lawyer acting for your client’s wife, and you come away with a list of nine positive outcomes and one negative outcome. It would be very unwise to start your follow-up letter to your client by concentrating on the one negative outcome rather than the nine positive outcomes. Think of how you package things for clients, make your communications with clients appropriately positive, and constructive. You want your clients to look forward to speaking with you, not to dread the news that you will bring.
A problem shared is a problem halved. Do not be afraid to discuss difficult situations or problems in a case with a trusted colleague. Often a fresh objective pair of eyes can add a layer of good sense and, occasionally suggestions on how to unlock seemingly intractable problems. In such a discretionary area it is often sensible to test one’s own judgment with those of a trusted colleague.
If it really is the case that your client falls out with you, it may be better for the client to go to one of your partners, or to go to a different firm, to get alternative advice. That’s life. Move on. The young solicitors to whom I spoke talked about difficult clients who use vulgar language on the phone to them, and who evidenced their anger at the system by taking it out on the younger solicitor. They would subsequently only have telephone conversations with that client in the company of a partner, by way of buffer and support. One of the best solicitors I’ve worked with used to carpet any client who talked down to a junior solicitor or secretary. I really respected her for that.
Remember, you are not a mud-wrestler. You didn’t go into the lawyers’ profession to get down in the mud and wrestle with other lawyers who live in the mud. Steer well clear. Never let anger trigger your comment or response to another lawyer. Anger is the worst possible guide, just count to ten, wait 24 hours, and move on. Don’t let your correspondence become a personality thing. That cannot truly help a client.
- Presentation is everything. At the end of the day, despite the fact that correspondence doesn’t now go into bundles, it may just be that the judge will look at your letter. Do make sure that your presentation is squeaky clean.
- Where you do have the misfortune of having a difficult lawyer representing your client’s partner or spouse, concentrate on the issues.
Narrow the issues between the two of you. Sort out the basic building blocks of the case. This is something that Charles J told us to do in paras – of the case of J v J  EWHC 2654. Re-read them. Identify the issues, and always work to narrow them. Don’t give difficult lawyers a broad canvas, make sure that they have to concentrate on what is actually in point. Open correspondence is often your friend here, setting matters out in open correspondence that the judge can know about, and now has a costs consequence because of the effect of Family Procedure Rules, PD 28A. The Court of Appeal’s support of the use of open correspondence which applies to costs in financial cases, in the case of Azarmi-Movafagh v Bassiri-Dezfouli  EWCA Civ 1184, is very welcome indeed.
- Use early neutral evaluation in children and finance cases if your clients can afford it, to get objective views on reasonable positions taken by solicitors acting for your client’s spouse or partner.
- Bypass the awkward squad, by mediation where you can. I remember being in a court hearing with a lawyer who had a reputation for liking litigation. I suggested to him that our clients would benefit from mediation. "Oh yes, I never thought of that" he said. Have mediation on your agenda.
- Don’t let cases fester when you have difficult lawyers around. It will add unnecessarily to costs and aggravation. Issue a Form A to impose a deadline on settlement, if you need to. The shortcutting facilities which have made available, pre-Covid and during Covid, the ability to get directions made by consent without court attendance at First Appointments. The court’s proficiency in justice on email is very welcome indeed in enabling there to be progression of matters towards settlement.
Remember that you’re meant to enjoy your job.
Obviously life doesn’t go in straight lines, and obviously we’re all going to have to face difficult personalities in the jobs that we do. Remember that you’re entitled to have a happy working environment, where you can share with colleagues, and most importantly, share laughter with colleagues.
If you require further information about anything covered in this briefing, please contact Simon Bruce or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2021