Tuesday, September 18, 2007

How many bad pennies?

In my post about the Bruce Hyman case I suggested that most family lawyers uphold the highest standards of the profession and work hard to reduce animosity by adopting a constructive non-confrontational approach, especially in matters involving children. Whilst I still believe that this is the case, I wonder if the number of 'bad pennies' is rather higher than my experience suggests. I have today received information about another incident of appalling behaviour by a family lawyer (unfortunately I am not able to give details), adding to a significant number of reports I've come across of similar experiences, particularly by litigants acting in person.

As I say, my own view is based upon my personal knowledge, gathered over more than twenty years of doing this work. Certainly, there have been times when other family lawyers have behaved in an unnecessarily aggressive or confrontational fashion (for example when they have become overly involved in their client's case), and occasionally some have been less than professional, but generally most I have come across have adopted the approach that I have mentioned above, especially those who are also members of Resolution or one of the family law panels. However, it is extremely rare that I have felt that the conduct of a fellow lawyer has fallen seriously below the standards that are expected (or should be expected) of us.

Now I am not so sure. Is my experience typical? Would it be the same if I were a litigant in person? It is made quite clear in Resolution's Guide to Good Practice and elsewhere that a lawyer's approach to a litigant in person should be no different, but do some lawyers seek to take advantage, for example by bullying the other party? Just how many bad pennies are there?

The public perception of lawyers in general and family lawyers in particular is that we don't care, we are biased and we will stop at nothing to achieve our client's ends, irrespective of the effect upon others involved in or affected by the litigation, including children. As I indicated in my previous post, I believe that most family lawyers are striving hard to turn this reputation around, but if there are too many bad pennies then we are simply wasting our time.
Posted by John Bolch at 1:40 PM
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6 comments:

  1. Yes I believe you are right about the "bad pennies". I was on the receiving end of one of them when I was unrepresented in my highly acrimonious divorce. The bad penny in question was a friend of the ex, who repeatedly rang me at my home hounding and threatening (in legal terms of course). Then came the onslaught of bullying through correspondance after I sought representation.
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  2. John,

    I can certainly tell you of one who has bullied me when I have acted on my own behalf at directions hearings. Although, in my view, she has been clearly acting in her client's interests, she has not been acting in our children's interests. Her approach to me on these occasions has been very different from her approach when I have been represented by counsel - and in reading your blog there is no doubt in my mind that she has "behaved in an unnecessarily aggressive or confrontational fashion" towards me when I have been a LIP.

    Clearly she has to act on behalf of her client, but does she not also have a duty of care towards our children, who are too young to have any input into proceedings? By bullying me rather than seeking resolution, she may have got what her client wanted in the short-term, but at a cost of prolonging the animosity, which surely cannot be in anyone's interests.

    Furthermore, I cannot help but think that she went further than simply bullying, and gave, in court, a reason for opposing a contact proposal I made which she must have known to be untrue. The repercussions are that, once again, instead of my ex and I sorting out contact arrangements between ourselves - which surely is what she should be encouraging for our children’s sake - there will be another full hearing on the matter of residence and contact in due course.

    I've just remembered two further things.

    The first is that on one occasion when I was a LIP, she came up to me just before we went in and said words to the effect of "I'll bet you you don't win".

    The second is that before our last appearance in Court she wouldn't talk to me beforehand, and then once in front of the judge she claimed that she'd not seen the requests for orders I was making. I have little doubt that some of these (although not all) could have been agreed beforehand, without the need to bother the judge.
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  3. The system in which one gains advantage for one's client by denigrating the other party is at fault. Of course good lawyers would like us to think that they're all good, and even Bruce Hyman managed to obtain a character reference from Sir Mark Potter which he used in his defence mitigation today. The fact is they have to allow their good natures to rise above the murk of the family courts, and that is something they are incapable of where the system rewards them for, say, getting the judge to award costs, or prevent a child being with one parent because of the other parent's hatred. Isn't that mostly what family custody dispute cases are about?
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  4. I see you already have two comments as well as my own, above, and I suspect there will be more to come. How many, I don't know, but in terms of your own ability to judge the size of the problem please bear in mind, first, that the general public as a whole will be under-represented amongst the people who read your blog and, second, that you cannot possibly have an unbiased view yourself about the size of nature of the problem because these 'bad pennies' by their very definition are lawyers who will be reasonable in their dealings with you.
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  5. Bad pennies, definitely rings a bell. I am a LIP in a divorce case initiated by my husband, who is represented by a hot shot sharky divorce lawyer. Hot shot sharky lawyer had no problems initimidating me, attempting to mislead me as to conduct of proceedings, putting me on notice for simply insisting that certain papers were made available at agreed dates (which he always seemed to miss....), not replying to my requests for information, causing me to not be able to complete my Form E, and then objecting to me applying for extension, not exchanging documents in time, and so on and so on. This lawyer was not only a hot shot in his field, he is sitting on several important commissions.... In my profession I am used to observing 2 lawyers dealing with each other and their respective clients. Nothing like the experience I have had. It was totally humiliating. Oh yes, sweet as pie and ever so polite in court with the judge present. Wouldn't hurt a fly. The hypocrisy of it still baffles me. Why can't those judges see through these people?
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  6. Yes, I've come across the odd lawyer like that. Some judges do see through them, others aren't interested, or simply don't have the time.
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