Resolution Guides to Good Practice Dealing with Clients Correspondence Service of Documents Discussing Dispute Resolution Options Mediation Dealing with Litigants in Person Collaborative Law Client Care Letters The Proceeds of Crime Act 2002 Dealing with Financial Dispute Resolution Appointments Working with the Bar in Family Cases Instructing Experts in Applications for a Financial Order Instructing Experts in Proceedings Involving Children Disclosure in Financial Order Applications Referrals to Contact Centres Preparing Pre- and Post-Marital Agreements Guides to Good Practice i Resolution PO Box 302 Orpington Kent BR6 8QX DX 154460 Petts Wood 3 © Resolution 2012. All rights reserved. No part of this publication may be reproduced, stored electronically or transmitted, in any form or by any means without the prior written permission of Resolution, except as expressly permitted by law. 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Typeset by Juliet Doyle and printed by ADS Group ii Guides to Good Practice Contents Introduction 1 Resolution Code of Practice 2 Guide to Good Practice for Family Lawyers in Dealing with Clients 3 Introduction 3 First telephone contact with client 3 Meeting with client 4 Consider any emergency steps needed 5 Role of the lawyer 6 Costs estimates 7 First letter to the client 7 Letter to the other party or their lawyer 8 Conduct of the case 8 Offers of settlement and their impact on costs in financial cases 10 Preparation for hearings 10 The hearing 12 Confidentiality 13 End of the case 13 Client terminating instructions of lawyer 14 Lawyer terminating retainer with the client 14 Family lawyers and personal relationships with clients 14 Guide to Good Practice on Correspondence 17 Planning for the court hearing 18 Faxes and emails 18 Aims and priorities in correspondence 19 Timing of correspondence 19 Effect of letters 20 Examples of good and bad practice 25 Guide to Good Practice on the Service of Documents 27 Introduction 27 Timing 27 Prior warning 28 Use of process servers 28 Venue for service 29 After service 29 Guide to Good Practice on Discussing Dispute Resolution Options 31 How to enable the client to make an informed choice 32 What is important to this client? 32 Aspirations 32 Guide to Good Practice on Mediation 37 Qualifications, training and ongoing professional support 38 Guides to Good Practice iii Scope and principles of mediation 40 Conduct of mediation 46 Other professional practice considerations 60 Guide to Good Practice on Dealing with Litigants in Person 67 Introduction 67 First contact 67 Communications generally 69 The petition or other proceedings 70 Service of proceedings 71 Children disputes 71 Agreements and consent orders 72 Contact at court 73 Constant harassment 73 Dealing with lay advisers 73 Guide to Good Practice for Collaborative Professionals 75 Involvement of third parties 75 Before the first four-way meeting 75 Timeline for each four-way meeting 75 The first and subsequent four-way meetings 76 Financial disclosure 77 Discussing options and possible outcomes in the collaborative process 78 Action to be taken following the conclusion of an agreement 79 Action to be taken if the collaborative process breaks down 80 Guide to Good Practice on Client Care Letters 81 Introduction: drafting a client care letter 81 Terms of business 83 Responsibilities 83 Hours of business 84 Equality and diversity 84 Data protection 84 Storage of documents 84 Outsourcing of work 84 Vetting of files and confidentiality 85 Limiting liability 85 Applicable law 85 Terminating the retainer 85 Payment of commissions 85 Payment of interest 85 Distance selling 86 Financial services 86 Precedent letter of engagement 87 Precedent legal aid client care letter 102 Precedent family help letter 106 Guide to Good Practice on the Proceeds of Crime Act 2002 109 iv Guides to Good Practice Guide to Good Practice on Dealing with Financial Dispute Resolution Appointments 111 Introduction 111 Prior to FDR 112 At the FDR 113 In respect of any proposed agreement 115 Appendix A: Guidance Note for Drafting Position Statement/Case Outline 118 Appendix B: Precedent Position Statement/Case Outline 121 Guide to Good Practice for Lawyers on Working with the Bar in Family Cases 125 Introduction 125 What are the respective roles of the family lawyer and barrister? 125 When should a barrister be instructed? 126 The selection of a barrister for a particular court or collaborative case 127 How should the barrister of choice be instructed? 127 Managing communication between barrister, lawyer and the client 129 Managing conferences 131 Specific issues of good practice in applications for a financial order 132 Preparation for hearing and papers for consideration 133 The hearing 134 Fees 135 Guide to Good Practice for Instructing Experts in Applications for a Financial Order 137 Introduction 137 When is an expert required? 138 What is the role of an expert? 139 When to instruct an expert – timing 140 How to select a particular expert 140 Information to obtain about potential experts prior to first appointment 141 The joint letter of instruction 142 Providing information to the expert 144 Attendance at meetings with the expert or inspections of property 144 Communications with an expert and supplementary instructions 144 The expert’s report 145 Questions following the expert’s report 145 An expert’s attendance at court 145 Best practice if two experts are to be instructed 146 The instruction of ‘shadow experts’ – when it is appropriate and their role 146 Appendix A: Part 25 FPR 2010 – Experts and Assessors 148 Appendix B: Practice Direction 25A – Experts and Assessors 153 Appendices C–E: Example joint letters 171 Guide to Good Practice on Instructing Experts in Proceedings Involving Children 183 Introduction 183 The court’s role 183 Finding an expert 183 Instructing experts 185 Pre-application instructions of experts 186 Guides to Good Practice v Duties of experts 186 Letters of instruction 186 Timescales (court proceedings) 187 Appendices A–B: Suggested questions for experts 188 Guide to Good Practice on Disclosure in Financial Order Applications 191 Introduction 191 The duty to disclose 191 The importance that the court attaches to the duty of disclosure in financial cases 195 The mechanics of disclosure 196 Privilege and disclosure 199 Disclosure and the Proceeds of Crime Act 2002 202 The legal limitations to self-help in obtaining disclosure 202 Duty to disclose all relevant information to the client 209 Confidentiality 210 When should the lawyer decline to act? 211 Guide to Good Practice on Referrals to Contact Centres 213 Introduction 213 Referrals to supported contact centres 213 Referrals to supervised contact centres 214 Contact activity directions and conditions 215 Guide to Good Practice for Lawyers Preparing Pre- and Post-Marital Agreements 217 Introduction 217 Discussions with your client 217 Forum for discussions 221 Safeguards and general considerations 222 vi Guides to Good Practice Introduction At a time of plans to modernise the family justice system, the increase in the number of self- representing litigants and commercial pressures upon our members, Resolution is pleased to publish revised and updated good practice guides. These guides take account of the Family Procedure Rules 2010, the SRA Handbook and guidance from recent case law. The guides are intended to assist family lawyers to: • Adhere to and espouse the Resolution Code of Practice, which includes assisting our clients to resolve disputes in a non-confrontational way, preserving people’s dignity and encouraging agreements. • Comply with the Family Law Protocol (3rd edition, November 2010), which endorses the Resolution Code of Practice at paragraph 1.2.1. • Assist the judiciary in achieving the overriding objective ‘of enabling the court to deal with cases justly’. • Research and cope with particular areas of concern. A hard copy of the guide is being sent to each of our 6,000 members and it is also to be found on our website at www.resolution.org.uk. It is to be found on the public part of the website and therefore available to all, and this will hopefully be helpful to self-representing litigants. The guides are periodically revised and all comments and suggestions for new guides are most welcome. Our Code of Practice is central to Resolution membership and the guides will assist members to successfully meet the challenges of adhering to the Code. Considerable thanks are due to the original authors of the guides; to the current members of the Standards Committee (who are responsible for maintaining and updating the guides); and to many other Resolution members who have helped out in any number of ways. David Woodward Chair of the Standards Committee [email protected] September 2012 Guides to Good Practice 1 Resolution Code of Practice Membership of Resolution commits family lawyers to resolving disputes in a non-confrontational way. We believe that family law disputes should be dealt with in a constructive way designed to preserve people’s dignity and to encourage agreements. Members of Resolution are required to: ü Conduct matters in a constructive and non-confrontational way. ü Avoid use of inflammatory language, both written and spoken. ü Retain professional objectivity and respect for everyone involved. ü Take into account the long-term consequences of actions and communications as well as the short-term implications. ü Encourage clients to put the best interests of the children first. ü Emphasise to clients the importance of being open and honest in all dealings. ü Make clients aware of the benefits of behaving in a civilised way. ü Keep financial and children issues separate. ü Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional.