Family law a guide for legal consumers

Transcription

1 Family law a guide for legal consumers Image Credit - Jim Harper A relationship breakdown is a difficult time for anyone. It is one of the most stressful experiences in life. Where you have to involve a solicitor, especially if you have never had to use a solicitor before, this can add to the list of things you may find difficult to deal with. We have prepared this guide to help consumers who are looking for legal help on a family law matter get the best service from their solicitor. Scottish Legal Complaints Commission Family Law a guide for legal consumers 1

2 We have carried out research which shows that in Scotland one in five complaints made about solicitors is about family-related work. Although time may be tight particularly in child residence cases, for example taking time to choose a solicitor carefully, and making sure that you are clear about what you can expect from your solicitor from the beginning, can help to make the process as stress free as possible. Scottish Legal Complaints Commission Family Law a guide for legal consumers 2

3 Family law top tips In this guide we suggest that there are ten simple things to consider that can reduce the likelihood of you complaining about your solicitor and help ensure that your expectations are met. If you have civil legal aid or advice and assistance, the situation may be slightly different. For that reason we have included a separate section which deals with that. Be clear from the start about the outcome you want and ask if this is achievable Prepare for the first meeting with your solicitor Ask about likely costs Get an idea of how long the process might take Understand how your solicitor will communicate with you Ask questions if you feel there is something you don t fully understand Be open and truthful Understand what to expect if the matter goes to court Be clear about the benefits and restrictions of legal aid Remember that you have the right to challenge or complain In the rest of this guide, we look at each of these in more detail. Scottish Legal Complaints Commission Family Law a guide for legal consumers 3

4 1. What outcome do you want? Even before you see a solicitor for the first time, it is a good idea to think about what you want. Think about what you want in advance Consider what you might be able to agree on Choose a solicitor who s right for you Sometimes, for justifiable reasons, we can feel aggrieved, angry, betrayed when a relationship breaks down. Understandably, we may feel that we want to retaliate, to have some form of revenge, to have our day in court. It is important to realise that the legal process in Scotland is very much focussed on solutions that avoid court. In matters of family law especially, the process is not there to decide who is to blame. Instead, the emphasis is on trying to get both sides to agree as much as possible. You can therefore expect to discuss various resolution options with your solicitor. For that reason, it is worth considering and if possible discussing with the other side what aspects can be agreed and what aspects are left unresolved. Sometimes, because emotions are running high, that won t be possible. However, remember that the more things need to be agreed through a legal process, the more expensive your solicitor s bill is likely to be. One thing to bear in mind, however, is that no matter how much you and the other side may be in agreement, the same solicitor will not be able to act for both of you due to a potential conflict of interest arising. When it comes to choosing a solicitor, it is important to take time to find a solicitor you feel comfortable with. It is a good idea to ask friends or relatives who may have gone through similar situations for a recommendation, although it is important that the solicitor you choose is someone that you feel at ease with. Remember that while your solicitor will be your adviser and legal representative, they are not your friend. You may find that they will question what you want to do and suggest a different way of approaching things. This can feel challenging and upsetting but remember that they are only doing this to give you their best professional advice which, after all, is what you are paying them for. Scottish Legal Complaints Commission Family Law a guide for legal consumers 4

5 It is also worth bearing in mind that if you do not get the exact outcome you want this does not necessarily mean that your solicitor has given an inadequate service or has shown poor conduct. Your solicitor will be entitled to charge you for the work done on your behalf regardless of the outcome. 2. The first meeting with a solicitor It is important to have a clear idea in advance of what might be covered at your first meeting with a solicitor. Where possible, prepare for this in advance. Come prepared your solicitor might need lots of information There may be a fee for the first meeting - check The solicitor can choose not to work for you and you can choose a different solicitor One key thing to bear in mind is that you are unlikely to get an instant solution or outcome from a single meeting with a solicitor. However, the solicitor will use that first meeting to gather information in order to map the way forward which is best for you. The first meeting is likely to last about an hour or so, depending on your circumstances. While some solicitors offer an initial free meeting to discuss the work in general most don t, and quite commonly the solicitor will charge a fixed price for the first meeting. Don t assume that the meeting is free but check whether you will be charged for it. If you think you may be eligible for legal aid, you should ask if the practice does legal aid work, otherwise you may be charged for the meeting. At the first meeting the solicitor is likely to talk to you about: Your finances, including income/benefits and outgoings Contact/residence arrangements for any children The financial support that you, a partner or children may be entitled to What capital you and your ex have including property ownership Separation and/or divorce-related issues It is important to think about these in advance and, where possible, take along any relevant documents. Scottish Legal Complaints Commission Family Law a guide for legal consumers 5

6 At the end of the first meeting, the solicitor may decide not to take on your case. This is something which they are entitled to do and can be for a variety of reasons they may already have a lot of other cases or they may feel that your case requires more expertise than they have. If that happens, ask if they can recommend someone else. On the other hand, you may feel that you do not want to engage that particular solicitor s services. You may decide that you would prefer to go away and reflect on things, or perhaps discuss things with your partner and try to resolve matters this way. Again, it is entirely reasonable for you to do this. Where you and the solicitor agree to work together, you should discuss the likely costs and timescales, which we cover in the next sections. 3. Costs Family law cases can be complex and unpredictable. For that reason, your solicitor will probably not be able to give you an exact figure for how much the work is going to cost. Costs can be unpredictable They will usually include time spent on s and calls and working on your case Ask for an indication of costs at the beginning and ask for updates if/when they go up If you think you may be entitled to legal aid and wish to explore that possibility, ask your solicitor about that. Remember, not all solicitors provide legal aid and it may mean that you have to go to a different solicitor who does. Section 9 of this guide covers some of the implications of legal aid in a bit more detail. Some distinct aspects of family law work can be covered by a fixed fee. However, it is more likely that your solicitor will charge you on an hourly rate that is, you will be charged for the time spent on your case in addition to any other sums which may need to be paid to other people for their services or to the courts. These are often referred to as outlays. This is an important point to bear in mind because this will include the time the solicitor spends dealing with you on the telephone even if you have telephoned them and time spent answering correspondence from the other side s solicitors. Scottish Legal Complaints Commission Family Law a guide for legal consumers 6

7 Even when not in direct contact with you, your solicitor will be progressing your case. Again, you will be expected to pay for that time, even although it may be invisible to you. For these reasons it is important to ask at the beginning for an indication of the likely costs. However, remember that, at best, this is only going to be an indication or an estimate and not a quote. The work your solicitor will have to do will depend on aspects which are unknown for example, the amount of work may depend on how the other side deals with matters or whether the case goes to court. There are, however, ways to help you keep an eye on costs. Depending on how you manage your day-to-day finances, it may be easier for you to pay by instalments as your case progresses rather than pay the full bill at the end. If that is the case you should discuss with your solicitor whether the firm has the option to pay what are called interim fees which can be arranged at intervals (perhaps every couple of months) to suit you. Another way of managing costs is to agree an initial limit at the start and ask your solicitor to let you know when that agreed amount has been, or better still is about to be, reached. However you agree to meet the costs of the case, it is important to make sure that if costs do increase beyond any amount you have been told, your solicitor lets you know as quickly as possible. If you agree to receive interim accounts and you do not receive one, it is your responsibility to ask for an update. If you keep an eye on costs, by asking for updates, this will make it easier for you to budget. If your case is being funded by someone else, perhaps a relative or friend, this is also a good idea so that you can keep them informed. Sometimes the way that items in your account will be described may seem unusual and you may find terms that you are not familiar with. If there is something in your bill which you don t understand or are not sure about, ask. And a final point on costs, remember to keep your solicitor up-to-date with any changes in your financial position including changes to any benefits you may be getting. This includes if you start to live with someone else as their income and contribution to your household expenditure may be something which will need to be taken into account. Scottish Legal Complaints Commission Family Law a guide for legal consumers 7

8 4. Timescales The time it will take to deal with your case can vary considerably. Get an idea of timescales at the start, but be aware they can change Agree how you want to receive updates and how often Some timescales will be outside your solicitor s control Most obviously, timescales can be affected by the complexity of your case. For example, if there are children involved, or if there is income, property or other capital which requires to be agreed, this may mean that your case will take longer to resolve. Your solicitor should be able to give a rough indication, from their experience, of the time a case like yours is likely to take. However, to a certain extent, this may be outwith their control and, for example, will be impacted by how quickly, or slowly, the other side and their solicitor deal with matters. It is also worth remembering that although you may have agreed things with the other side at the start, and your case may now seem straightforward, people can change their mind. Again, it is important to recognise that this is something which will be outside the control of your solicitor and may have an impact on the time it takes for your case to be brought to an end. It is worth agreeing with your solicitor, at the start, how frequently you can expect to receive updates on how your case is progressing. This can help you set in your own mind how matters are advancing and avoid you making unnecessary requests for updates and cut down on your costs! Where you have been given an estimate of how long things might take, it is worth asking your solicitor to let you know as soon as possible if, or when, that estimated timescale shifts. If you need to go to court, timescales will be set by the court process. While your solicitor may be able to ask the court for more time, or for dates to be changed, to some degree the process will be out of your solicitor s control. We cover that in more detail at Section 8. Scottish Legal Complaints Commission Family Law a guide for legal consumers 8

9 5. Communication Most of the complaints which come to the SLCC are about poor or inadequate communication. Agree who to contact if your solicitor is unavailable Remember communication is a two-way street You may not always get an immediate reply As we said in section 2, it is useful to agree with your solicitor from the start how frequently you can expect updates, and agree how you would like to receive these for example, by , letter, telephone or face-to-face meetings. While this will cover regular updates, there may be situations where you feel you need to contact your solicitor in addition to the arrangements you have agreed. For example, this could be because you have become aware of an unexpected development in the case or of some action or comment made by the other side. Where emotions are running high, it can seem the most natural thing to pick up the phone or your solicitor for an instant response. In family law matters in particular, where sensitivities are heightened, things which at other times might feel unimportant can appear more significant. Before contacting your solicitor, and bearing in mind that will be charged for their time, it is worth considering whether the matter is significantly urgent or whether it can wait until your next regular or planned contact with your solicitor. Where you do decide that you need to get in touch with your solicitor, may be a good way to contact them. This can make communications quicker. However, remember that your solicitor is likely to be dealing with other (sometimes many other) cases apart from your own and you should not expect an immediate response. This also applies to returning telephone calls. Bearing this in mind, it is also useful to ask your solicitor who you should contact if something urgent does come up and your solicitor is unavailable. A final point to make here is to remember that communication is a two-way street, and in family law cases this is especially important. At the beginning of your case you will have provided your solicitor with a lot of information about your circumstances. Your solicitor will be working on your case based on that information. It is very important that you let them know as soon as anything changes this could be a change to your income or employment status, living arrangements, a change in the family make-up or, more simply, a new mobile number or other contact details. Scottish Legal Complaints Commission Family Law a guide for legal consumers 9

10 If your solicitor asks you for information you should always try to provide this in good time to prevent delays. 6. Ask if you don t understand The legal system is complex and is not always easy to understand. Don t be afraid to ask if you don t understand Try to take notes of important information Consider asking for a summary in writing from the solicitor When faced with a situation which affects the most important parts of our world a relationship, home, children and there are often additional feelings of distrust, upset and perhaps betrayal, it is hardly surprising that you may not be in the best place to understand all that your solicitor is telling you. Your solicitor will appreciate that and should take time to explain things as clearly as possible. Your solicitor may use legal terms that you don t understand. Many people feel uncomfortable asking for explanations as they don t want to appear silly or stupid. However, it is easy for your solicitor, who is familiar with the process, to forget that it may all be new to you. So don t be afraid to ask what they mean.and if it is still not clear, ask again! Most solicitors welcome questions and, by making sure that you understand, that may avoid problems in the future. Sometimes your solicitor may have to give you a lot of information at one time. It is understandable that, with everything else that is going on in your life, you can t necessarily take it all in. It is a good idea therefore to take notes so that you can read them in your own time and take the information in at your own pace. You may also want to consider bringing someone along with you to the meeting to take notes for you, or to translate information if your first language is not English. Solicitors often have leaflets with useful information which you can take away with you, so it is worth asking about that if you find that something is particularly difficult to understand. You can always ask your solicitor to confirm the main points in writing but remember that you may be charged for that. Scottish Legal Complaints Commission Family Law a guide for legal consumers 10

11 7. Be open and truthful We said earlier on that you shouldn t think of your solicitor as your friend. A better way of thinking of them is as a trusted adviser who will do their best on your behalf. Make sure you are honest with your solicitor about your circumstances If things change, let them know Your solicitor has a duty to keep your personal information confidential In family law situations, your solicitor has to be someone you can trust with personal, and often painful, information. Relationship breakdowns are intensely private, and the details which need to be discussed, and the questions you may be asked, can feel uncomfortable and intrusive. Your solicitor will be sensitive and supportive, and has a duty to keep any personal information which you tell them confidential. It is important that your solicitor has complete knowledge of all the circumstances of your case, and there may be details which you may not think are important but can be significant in terms of how the work will be approached. For that reason it is important that you have a solicitor with whom you can be completely open. And it is important that you are completely open. One of the key areas which is likely to be discussed at the start is your financial position. It is very important that you are completely open about this to your solicitor even about finances the other side may not know about. As part of the process, either party can call on the other side to make a full disclosure. This is legally binding. If, at a later date, it is discovered that you were not totally open from the beginning, this can have an adverse effect on your case. This also applies to any experts or other people who may be instructed to act in your case this could include social services or those involved in the court or children s hearing process. If it is later discovered that, at any point in the process you have not been truthful, your solicitor may stop acting for you. Scottish Legal Complaints Commission Family Law a guide for legal consumers 11

12 8. If it goes to court In most cases, your solicitor will work hard to agree matters with the other side so that your case does not have to go to court. This may include using options such as family mediation or by entering a formal agreement with the other side. However, in some cases court is unavoidable and, if this happens to you, there are some things you should bear in mind. If it goes to court, it s not all in your solicitor s control There are alternatives to court proceedings available at all stages Your solicitor should behave in a civil and professional way in court The most important thing to know is that once the case goes to court it is very largely out of the control of your solicitor. The process, including the speed with which things will progress, will be decided by the court. Increasingly, the courts are trying to resolve cases to prevent lengthy court actions and you may find that you are asked to take part in formal mediation. This will involve an independent and impartial mediator and can often be a good and less costly way to resolve matters on which there is disagreement When a case goes before a court this is called a hearing. There are various types of hearing and for some of these it will not be necessary for you to attend the court for example, if the hearing is to agree how the case, or an aspect of the case, will be dealt with. Where a hearing is set to deal with evidence, details about the case will be heard from both sides to allow the person chairing the hearing often a Sheriff to make a decision. You may be required not only to attend but also to answer questions which are put to you. There may be times when your own solicitor is not able to attend court in person because of other work. This is quite normal and you shouldn t be surprised if another solicitor usually from the same firm turns up at court to represent you. The solicitor will have been given enough information about your case to deal with the hearing. Scottish Legal Complaints Commission Family Law a guide for legal consumers 12

13 The other important point to note is that if your case goes to court your case will cost more. The court will decide how many hearings your case will have and what will be required each time. You will have to pay for the cost of your solicitor s time at court, travel time to and from the court, and also for the work they need to do before each hearing. Other costs may arise from the court process. If there are children of the relationship, for example, the court may decide that a report into the welfare of the children is needed. The court may ask for a report from a psychiatrist or psychologist. You are likely to have to pay for these reports. Depending on the result of the court case, you may find that you not only have to pay for your own solicitor s work but also the expenses of the other side s solicitor and/or their court costs. A final thing to bear in mind is that no matter how acrimonious matters are between you and the other side, this will not be reflected in the court process. Sometimes it can appear strange to see your solicitor being civil, even friendly, towards the solicitor who is acting for the other side, particularly if there is strong disagreement between you and your ex. It can feel that your solicitor is somehow being disloyal and is no longer on your side. However, when solicitors appear in court they will always behave in a professional and civil manner towards each other and it does not mean that they are no longer acting in your best interest. Scottish Legal Complaints Commission Family Law a guide for legal consumers 13

14 9. Legal aid As we said in the introduction, where you have legal aid there may be differences in what you can expect from your solicitor. Legal aid normally isn t free; it s more like a loan The Scottish Legal Aid Board will be in control of the work your solicitor can do They will expect you to conduct yourself in a certain way It is worth noting that there is a difference between civil legal aid on the one hand, and legal advice and assistance on the other. Your solicitor should explain to you what the differences are between these and which one you may be entitled to. The most important thing to realise is that the Scottish Legal Aid Board (SLAB) will be largely in control of the work which your solicitor can do on your case. Your solicitor will only be paid for work which SLAB considers is necessary to progress your case. In that sense, therefore, your solicitor is less in control of how much work can be done and may not be able to do what you ask them to do. For example, SLAB will only pay for letters which it considers are necessary to take your case forward. As your case progresses, your solicitor may also have to ask SLAB for permission to take the next step. This can result in your case being delayed while approval is requested from SLAB and will be outside your solicitor s control. Your solicitor also has certain duties to SLAB. For example, if you ask for work to be done which is thought to be unreasonable, or if your solicitor discovers that you were not completely open about your financial circumstances, they must report that to SLAB. This can result in your legal aid being withdrawn and you having to repay SLAB the costs of your case. Where there has been dishonesty, SLAB may refer this to the police. Another point to bear in mind is that although many people tend to think of legal aid as a free service, this is not generally the case. Legal aid is more like a loan to help pay your costs. If you do qualify for legal aid, you may have to pay a monthly contribution. It is important that you keep making the monthly payments. If these stop, legal aid may be withdrawn and your solicitor will either have to stop working on your case or charge you privately. Private fees will be more expensive than the fees that can be charged to SLAB. Scottish Legal Complaints Commission Family Law a guide for legal consumers 14

15 It is also important to note that, at the end of your case, SLAB may expect further money from you to pay any balance which is owed to them. This is referred to as clawback and you should check with your solicitor whether this applies to you. There is also helpful information available from SLAB which explains this in more detail. This can be found at or you can call the legal aid information line Scottish Legal Complaints Commission Family Law a guide for legal consumers 15

16 10. You have the right to challenge or complain If you are unhappy with the service a solicitor has provided to you, or feel that a solicitor s conduct is unprofessional, it is important that you make your concerns known as soon as possible. If you have a complaint, speak to the firm first Allow them 28 days to respond Be aware of our time limits Ideally you should be able to speak or write to the solicitor to sort it out. If you don t want to do that, you can ask if the firm has a Client Relations Manager you can speak to or write to about the problem, so that it can be dealt with as quickly as possible. You need to allow the solicitor 28 days to deal with your complaint. If, after having done this, you are still not happy with the outcome, you have the right to make a formal complaint to us. Remember, however, that there are limits to the length of time you are allowed before you make your complaint to us and if your complaint is late we may not be able to accept it. Details of the timescales for making complaints are on our website or can be provided by calling our Enquires telephone number However, it is always better to make your complaint as soon as possible. For any advice about making a complaint, we are here to help. Our contact details are below. Scottish Legal Complaints Commission The Stamp Office Waterloo Place EDINBURGH EH1 3EG Tel Fax enquiries@scottishlegalcomplaints.org.uk If you want to find out more about us and what we do, please visit We are open from 9am until 5pm, Monday to Friday, apart from Tuesday when we close for staff training between 10am and 11am. If you need information in another language or in large print or on audio CD, please get in touch. Publication Date: 20/03/2015 Scottish Legal Complaints Commission Family Law a guide for legal consumers 16