Back in December 2017, I published an article within which I discussed the case of Simic & Norton.
That particular blog was very much geared towards questioning how parties may be able to keep their legal costs down. I have recently felt that the case was worth revisiting, and am thus unsurprised that the decision is being quoted more and more frequently by practitioners with respect to how correspondence by solicitors is, or should be written.
In that matter, His Honour Justice Benjamin was critical of the legal fees that both parties had expended up to and including the hearing of the matter (such fees being approximately $860,000 in total). As a response to the fees charged, His Honour referred both solicitors to the Office of the Legal Services Commissioner in order for the Commissioner to investigate whether there had been any wrongdoing on their part.
However, one of the other matters raised in this Judgment related to what His Honour described as a "culture of bitter adversarial and highly aggressive family law ligation".
His Honour made particular reference to some of the letters that had been written by the respective solicitors. In relation to correspondence, he said that:
His Honour concluded that "solicitors are not employed to act as 'postman' to vent the anger and vitriol of their clients". Finally, His Honour said that "some of the communications appears (sic) to add 'fuel to the fire' of conflict rather than dampen it down".
It goes without saying that family law matters are highly emotional. Time and time again, parties are hurt by the conduct of the other party, and for that reason, it is entirely understandable that the party may wish to 'get back' at the other party. However, the Family Court has now weighed in on the appropriateness or otherwise of that being the case, and solicitors will, moving forward, be extremely reluctant to fight their client's battles for them in that way.
It is often overlooked that solicitors are part of a 'profession', and inherent in that is the need to be 'professional'. It is therefore my expectation that there will be a real and significant decrease in solicitors being comfortable with simply writing letters that their clients have asked them to. There is now a higher onus on solicitors to act professionally, and where that higher duty comes into conflict with what it is that a client wants their solicitor to say, it is likely that that higher duty will win out.
Solicitors who are well versed in family law should have the ability to get their client's point across without the use of inflammatory or unnecessarily aggressive language. Furthermore, although it is trite to say, "sometimes you catch more flies with honey than you do vinegar", there is a time and place for being firm and insistent in correspondence, but the line between being firm and being rude must be walked appropriately.
Finally, solicitors are in place to provide professional, well-researched advice, and more often than not, clients do find themselves paying significant fees to receive such advice. As such, clients are encouraged to follow the professional advice of their solicitor when it comes to the tone of correspondence, which shouldn't be an issue if the client is comfortable with the solicitor that they have engaged to act on their behalf.
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