Perhaps it is an indication that the recession is starting to pinch.  Peter Lodder QC, chairman of the Criminal Bar Association, accused many solicitor-advocates of being “truly appalling” at this year’s Bar Conference (reported, and embellished, in the Times).  The Law Society, never one to shirk from blundering into a dispute ham-fistedly, duly hit back, with President Paul Marsh claiming that the comments were “exactly what you would expect from a profession that is failing to deal with competition”, according to today’s Law Society Gazette.

In rolling up their sleeves in preparation for a good bit of inter-professional mudslinging, however, the Law Society has completely overlooked the substance of the complaint itself.  True, it may be unduly conceited to state that “the Bar does not say that such an advocate is bad by definition”, neither is it necessarily appropriate to run to the press to air your dissatisfaction, but for the Law Society to blithely claim that there is no evidence of poor levels of advocacy by solicitor-advocates is not only embarrassingly blasé but shifts the argument away from the real issue.

Lodder’s complaint is not that there exist incompetent solicitor-advocates.  Not doubt they do (whatever the Law Society may think), just as there exist incompetent barristers.  His real concern is about the work they are undertaking, citing as an example “defence solicitors who have never before conducted a crown court trial and have very limited experience in the magistrates’ trials [who] now appear as junior advocates to defend in murder trials”.

A solicitor-advocate, having completed 18 hours of advocacy training, passed advocacy, procedure and ethics exams and prepared an advocacy portfolio, is entitled to appear before the High, Crown and appeal courts.  But the key word here is entitled.  A newly-called barrister, having completed nine months’ vocational training on those same skills, also has that entitlement.  But no solicitor would instruct so junior a barrister to conduct a Crown Court defence, and therein lies the problem.

A junior barrister will be not be called upon to undertake more complicated work until his experience or reputation is such that a solicitor is prepared to instruct him to do so.  The solicitor-advocate has no such gatekeeper.  Obscured by the unecessary name-calling is Lodder’s real concern: that solicitor-advocates are keeping for themselves cases which they are not yet experienced and competent enough to deal with.  If that accusation true then it is not the bar that is the real victim, it is justice; and that is not something the Law Society should be dismissing as lightly as it is.

The suggestion is that this trend is made in the interest of economy, and if this is correct then the danger is only likely to grow.  As the economy further declines the pressure to allocate work based on fees rather ability increases, and the temptation to push complicated work onto insufficiently experienced advocates of either profession needs to be resisted and, if necessary, policed.  Plunging legal aid budgets will make this especially difficult.  In family cases, however, just as much as criminal ones, justice depends on it.

I liked this comment from Hughes LJ in his article in the October edition of Family Law.  Although it is made in the course of justifying spending taxpayers’ money on good lawyers in child care cases, it struck me as a succinct statement of what judges are looking for from lawyers in all family litigation when preparing and presenting their clients’ cases:

“[G]ood advocates and litigators do not cost money, they save it.  Every judge will tell you so, as he will tell you that he cannot do the job without them.  They do not waste money on unnecessary issues and they get it right first time so that there are fewer appeals or consequential applications.”

Recently added to the site:

• 10 new articles by family lawyers from around the web in the Library
• Links to the latest 5 articles at Family Law Week, also in the Library
• Links to the official RPIX, CPI and Bank Rate tables in Tools
• Take-Home Salary and Child Maintenance calculators, also in Tools
• New blogs added to the BlogFeed: Family Law Matters, Laws of Love and Divorce: The Blog about

If you have anything you think should be added to the site, let me know.

Nick Holmes at Binary Law is an ambitious man. He has initiated a project he is calling the Free Legal Web, and he needs your help.

For full details, see the manifesto. His ‘plausible promise’, however, is this:

“I will spearhead the development of the Free Legal Web — a service that joins up the law and legal commentary and analysis on the web and delivers a useful service to both lawyers and the community at large. I need a commitment from a handful of others with complementary skills and expertise to kick-start the project. All suggestions are welcome and necessary to drive this forward.”

Essentially, the goal is to build a site that brings together all the free legal resources currently available on the web in an accessible form. But the format, and indeed the whole scope of the project, has yet to be determined.

To help determine these issues, and get the project off to a flying start, he has arranged a Barcamp which will take place tomorrow at the Royal Society of Arts tomorrow from 10am to 5pm. Work at the weekend - ouch!

There is still time to sign up, if you are free and interested. For my part, I think the goals of the Free Legal Web marry wonderfully with this site’s mission, and will be attending and reporting back here on what happens.

Watch this space.

I wrote this back in January, when I set up a family law blog. Plenty has changed since I wrote it, not least a realisation of the time I actually have available to contribute to projects outside work and the magnitude of the project I have proposed. Nevertheless, I still think it holds up fairly well as a description and justification of what I hope eventually to achieve with this site.

I will post again in future about how my ideas have developed, and where the next steps need to be taken, but for now here is the initial mission statement I posted 10 months ago:

“Not so long ago, while I was a family trainee, my parents got divorced. They agreed financial arrangements together and my mum went to a highly rated firm to have an Order drawn up.

At the time I was not fully aware of how badly she was being advised. From the rest of my training, however, I now know that the changes her solicitor insisted on making actually exposed both my parents to potential IHT charges, and that his failure to ensure that my dad did not apply for Decree Absolute until the finances had been sorted could have had very unpleasant consequences. The fee for failing to protect his client’s interests and botching unnecessary drafting? Over £5,000.

I expect there are clients up and down the country who have similar stories (or would do if they knew). The fact is, though, that I feel some sympathy for this solicitor. I get the feeling, you see, that the work was not done by one of the partners who had built the firm’s top tier reputation, but by some overworked junior assistant. In pursuit of the noble (and necessary) aim of keeping costs to a minimum he probably received minimal supervision from above or support from below and was left to fumble his way to a successful resolution.

I imagine that a similar story is commonplace in family departments across the country. A big cause of this is that, in divorce, there is no ‘winner’ who can claim back his costs.  Each party’s legal fees come out of what is essentially a shared pot, and the more they both spend on lawyers the less there is to share out at the end. Because of this there is a constant pressure to keep costs down, and this inevitably pushes work from partners down to assistants, or even trainees, wherever possible.  Even in ‘big money’ cases it must be rare to find a client who can afford to have a partner control the day-to-day running of his case.

All this you know. What concerns me is that there is only so much you can learn without training or guidance. When assistants are overworked and undersupervised there is no reason to expect that they will become better lawyers: they will simply be mediocre more efficiently. But what can be done? Increasing supervision is expensive.  Training is expensive.  Purchasing books and online subscriptions is expensive.  How do we balance this with our need as family lawyers to minimise the cost to the client?

I believe there is a way. While most of the legal community has been trundling along with its head down the last few years, the rest of the world has discovered Web 2.0.  In a very simple sense, Web 2.0 refers to web applications where content is created by the user rather than the site owner (think sites like Facebook, Myspace, and Wikipedia), but in a broader sense is part of a general trend towards user-generated content and mass collaboration.

As a teenager my dad would ask me why anyone would share their music on Napster. He still doesn’t understand why people upload videos to YouTube. But they do. They spend their time programming code for open source software and adding and amending entries on Wikipedia. Traditional business models cannot explain the benefit of this ‘free’ work which provides content to others with no discernable profit. Law firms, more than most businesses, value as their key commodity their intellectual property - the combined knowledge and experience of their staff. Why would they want to make that freely available? Surely that would kill any competitive advantage the firm had?

These are reasonable questions, yet some adventurous businesses have taken that very leap of faith and entrusted their secrets to the masses.  In 1999, IBM opened up masses of its data and thousands of hours of its developers’ time to the open source Linux community. Rather than losing out, it was able to collaborate with other developers and ultimately produced a workable operating system for a fifth of what it would have cost them independently. Without this it would have had to abandon the idea altogether and purchase the Windows OS from rivals Microsoft.  Proctor & Gamble have been so successful at sourcing new products by making its discoveries available to outside companies that it has publicly declared a target to obtain 50% of its new innovation from outside the company before 2010.

What these companies have done is exceptional, but the opportunities presented by following their example are huge. The key lies in understanding and retaining those elements that are a business’ unique strong points and being prepared to reduce control over everything else. This requires a new way of thinking about assets that law firms will have difficulty coming to terms with. Nevertheless, the experiences of IBM, P&G and the new generation of collaboration-based companies show that it is possible.

How might this work in family law? Picture a website, ten years from now, which is the first page you open every morning when you get to work. This site has everything you need as a family lawyer: a wiki with information as detailed and accurate as you could find in any textbook; articles written by leading academics; case notes written by the barrister who led the case in court; forums to discuss the latest issues with lawyers from across the country; directories of professionals in ancillary professions, such as accountants and child psychologists, with reviews and comments from other lawyers who have used them; interactive programs where you can learn to improve your advocacy or drafting; or perhaps you could just watch a video of a round table meeting between some of the country’s leading practitioners, academics and judges, or footage from a recent conference.

Now imagine that everything on that website is free. Think of the saving that could be passed on to clients (or pocketed by partners) if there was no longer any need to pay for textbooks, for subscriptions to Westlaw or Lawtel, or spending time and money sending lawyers out to external courses.

Of course, the difficulty is convincing people to contribute content for free. Why send an article to such a website when you could be paid to submit it to a prestigious journal? Why would you spend time contributing your research to a wiki so that someone else can find the information quickly and easily? Ultimately, it will take time for lawyers to learn to accept information sharing as standard, but consider this situation. A junior barrister sees a colleague of similar experience developing a reputation, and being instructed, off the back of articles she has submitted to the site. Might our barrister not figure that the same thing could work for him? Would it not be impressive for a prospective trainee or pupil to be able to demonstrate his commitment and understanding by pointing to something they had contributed. Some well received contributions would go a long way to establishing a reputation in the industry. If nothing else, is it not daft that a hundred clients at a hundred different law firms all have to pay to have the same piece of research carried out? It’s not efficient and it’s not economical. What happened to our desire to keep clients’ costs down?

Ultimately, the success of such a project requires firms to realise that knowledge of the law is not a lawyer’s unique selling point, except in relatively obscure cases. A client doesn’t pick a solicitor for their appreciation of the Hildebrand rules, or even the depth of their pensions knowledge. A client wants a lawyer they can relate to, have confidence in and who can manage their case effectively and economically. You don’t lose any of those virtues by sharing your legal knowledge, and ensuring that all lawyers are well informed does not create unnecessary competition because being a good lawyer is about so much more than knowing the law. Besides, you can tell the world all the facts you learnt from your latest Court of Appeal case, but in terms of both reputation and experience you have still gained something that is unique, that distinguishes you. Sharing knowledge makes us all better lawyers, and the only ones who lose out are those who are short on all those other skills that make a great family lawyer.

At the moment this is all little more than a dream, but there is no reason to believe it is impossible. The ‘Law 2.0′ movement has been under way for over 2 years in various guises. Blawg aggregates over 1,000 active US legal blogs while Nick Holmes at Binary Law lists over 120 active UK legal blogs. The Crimeline criminal law wiki estimates that it has over 1,000 pages that are ‘legitimate content pages’ and boasts over 1 million pages views. It also produces a weekly update which is circulated to over 10,000 criminal lawyers, judges and academics each week.  IPKat reported in August that it had been encouraged by the Intellectual Property Institute to apply for initial funding that would allow it to build up a critical mass of material for an open-access IP law wiki. Already, forward-thinking lawyers are starting to appreciate the benefits that can be reaped from harnessing the power of Web 2.0.

Such a site will not be built wholesale, and it will not be created by the traditional fee-charging legal publishers. The creation of a free, comprehensive Family Law resource will have to be a grassroots effort, building up a site piecemeal as time and technology allow. It will take years. But there are enough practictioners, academics and students out there to get it going, and momentum is all that it needs.

My plan is to start website that will form the basis for this project. It need not be the same site that eventually realises the vision - it would be enough to convince an organisation with more funding to start its own. My intention is that this blog will ultimately form an editorial on that site, which explains its slightly snooty name. All I ask at this stage is that you support this project and, if you can, share your ideas and help push it forward.

We can’t prevent a divorce being an unpleasant experience, but I believe that if family lawyers can learn to adopt a collaborative approach to knowledge we can ensure that clients never have to deal with a badly trained, uninformed divorce lawyers. Personally, I think that’s the least that we owe them.”

What happened?

The facts of this case are not actually relevant. This is a judgment about bundles. Having finally seen one bad bundle too many, Munby J uses the judgment to send out a message to practitioners reminding them of the sanctions for failing to comply with the practice direction.

“It is over eight years since 10 March 2000, when the then President, Dame Elizabeth Butler-Sloss P, issued Practice Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536. It is over two years since 27 July 2006, when her successor, Sir Mark Potter P, issued Practice Direction: Court Bundles (Universal Practice to be Applied in All Courts other than the Family Proceedings Court) [2006] 2 FLR 199. My experience, which is shared by too many of my brethren, is that far too often the Practice Direction is still being honoured more in the breach than the observance.”

The Judge details two examples that he has experienced in the past year of “the complete failure by the professions to comply with their obligations” in relation to the preparation of pre-trial documents.

“In the case of those who practise regularly in the family courts there is, and can be, absolutely no excuse for not being completely familiar with the Practice Direction and its contents and complying meticulously with its requirements…”

Both barristers and solicitors came under fire, though since counsel cannot be expected to provide the court with preliminary documents until they have received and digested their papers my guess is that it will be solicitors who are most likely to find themselves in the naughty corner as a result.

So what?

Well, it’s all quite important really. Munby J, on behalf of the judiciary, has issued a warning shot. Enough, it seems, is enough. In case you are not aware of the sanctions available for non-compliance, they are:

• costs against the party
• costs against the defaulting lawyers
• having the case put to the end of the list
• public ‘naming and shaming’

“It would not, in my judgment, be fair or just to expose a practitioner to this last sanction without fair public warning having been given that the sanction is available and that it may be applied in appropriate cases. I have therefore not identified anyone involved in either of the cases to which I have referred. But the professions have now been warned. Next time a defaulter may not be so lucky.”

I will try to do a post on the 2006 practice direction in relation to Munby J’s specific concerns some time soon.

There seem to have been a lot of posts on US blogs this week about pre-nuptial agreements. With the Law Commission’s recent decision to consider the introduction of binding marital property agreements as part of their Tenth Programme of Law Reform it seemed worth having a look about what they are saying about the pros and cons of signing a pre-nup.

Stephen M Worrall at Georgia Family Law Blog offers his comments on an article by Jannelle J Zawaideh entitled “7 Reasons You Better Get A Prenuptial Agreement”.  She argues that pre-nups can be appropriate even where the parties’ assets are relatively small and gives the following situations where she believes a pre-nup should be considered:

• you have considerable assets
• you own all or part of a business
• you are receiving an inheritance
• you have children and/or grandchildren from a previous marriage
• one of you is much wealthier than the other
• one of you will be supporting the other through college
• you have loved ones who need to be taken care of, such as elderly parents
• you have, or expect in the future to earn, a large income

She also suggests that couples would be well advised to keep their assets separated once married. All of this reeks very heavily of an attempt by the financially stronger party to protect his or her assets from the future spouse although, as pointed out by Legal Help Mate, the pressure to enter the pre-nup will often, in fact, come from the future in-laws.

An article at Best Syndication (hat tip to Sam Hasler at Indiana Divorce & Family Law Blog), however, argues that signing a pre-nup “can be a genuinely beneficial and positive experience”.  The claim is that the full and frank disclosure required before a pre-nup can be signed encourages the couple to be open and honest about their financial hopes and expectations, something which many couples would otherwise avoid discussing until after difficulties had already arisen. In this way the agreement can help the parties start the marriage confident that they are pulling in the same direction and without anxieties about the consequences if things do not work out. The author also argues, as do others, that rather than demonstrating a lack of trust, a pre-nup can be beneficial because it demonstrates openness and honesty between the parties.

A pre-nup can also be the opportunity to set out how other aspects of the marriage will be conducted. Jannelle sets out (another) list of matters which are commonly dealt with in pre-nuptial agreements:

• whether to file joint or separate income tax returns or to allocate income and tax deductions on separate tax returns (not really a UK issue)
• who will pay the household bills and how
• whether to have joint bank accounts and, if so, how to manage them
• agreements about specific purchases or projects, such as buying a house together or starting up a business
• how to handle credit card charges — for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments agreements to set aside money for savings agreements for putting each other through college or professional school
• whether you will provide for a surviving spouse — for example, in your estate plan or with life insurance coverage
• how to settle any future disagreements — for example, you might agree to hire either a mediator or a private arbitrator

Finally, Legal Help Mate even argues that the weaker financial party could even turn the pre-nup request to their advantage. After all, a future spouse will be far more inclined to offer a generous deal when loved up in the build up to the wedding that during a bitter divorce battle after the relationship has broken down.

There are those who dispute the supposed benefits, however. Psychiatrist Dr Mark Goulston, writing at divorce360.com, believes that asking for a pre-nup can “rip a hole in the romance of a relationship” and that asking for one will make your future spouse think that:

• you don’t trust them to be fair and reasonable if you get divorced
• you’re trying to control them
• you don’t think the marriage will last
• you’ve lied about how you would take care of them, and are now back peddling
• you’ve gone from a giver to a taker
• you may want them to unconditionally love you, but there are conditions to your loving them in return
• you don’t have confidence that you and they can rationally discuss and work out conflicts
• you’ve put a dollar amount on the value of their love
• you don’t care about the humiliation they may face in admitting this to friends and family
• you put a much higher value on preserving your pre-marital assets than you do on their sacrificing a “window of desirability” and lessening their next marriage prospects based on their non-financial assets that may be diminished after the marriage by virtue of their being older

Blimey.

What all the commentators agree on, however, is the importance of the fact that having a pre-nup allows the couple, rather than the state, to decide what will happen to their assets. The difference between the situation in these authors’ states and the current situation in England and Wales is that, whether or not you agree with the concept of a pre-nuptial agreement, the parties at least know what they are signing out of. This is where my problem with the introduction of pre-nups currently lies. Until financial settlements can be predicted relatively accurately, the primary purpose of an English pre-nup will not be to allow couples to distribute their assets in a manner they consider to be appropriate to their particular circumstances, but rather to buy a level of certainty not currently offered by the courts. Whatever the advantages of introducing pre-nups are supposed to be, buying your way out of a flawed system should not be one. Fix the system first and then decide whether to offer an alternative to those with the money and inclination to negotiate something different.

Welcome to my site, and thank you for coming.

The site is broken up into a number of areas, the most important being:

• The Editorial - on which I hope to post frequent updates about what is being talked about, whether in the news, on blogs or on the discussion forum
• The BlogFeed - an aggregation of the last three days of blog posts from UK family law websites. Where possible, the authors of these blogs have been contacted for permission, and many have already confirmed that they are happy to have their entries reproduced. This page exists primarily to demonstrate that people are out there blogging about family law, as I would guess that most people familiar with the blawgosphere have a more comprehensive feed that they already subscribe to. I would encourage you to click on the links to the articles in their original location where you will be able to read others’ comments and comment on the posts yourself.
• Resources - the beginnings of a library of resources, currently exclusively limited to links to external sites (databases are expensive!). One of the first things I hope to do is make these participatory (most likely in wiki format) and to encourage visitors to get involved.
• Discussion Forum - I don’t expect this to be used much to start with, but this site is primarily about creating a community, and I hope that eventually this will become a focal point.

I will go into detail about what I hope to achieve with this site in future posts, but for now I simply invite you to have a look around and let me know what you think. If you find anything that looks wrong or doesn’t work properly it would be great if you could post these in the appropriate section of the forum. You will need to register to do this, but that requires no more than giving a contact email address and inventing a username.

I really hope you all enjoy looking round the site.