Up for an Update? Padden v Bevan Ashford rides again!

Diligent readers of the blog will remember me commenting on Padden v. Bevan Ashford Solicitors. You can quickly refresh your memory on the case revolving around the free half hour here:

The end of the half hour free interview?

You’ll never guess what’s back in the courts – 

Padden v. Bevan Ashford

That is correct, the re-trial of Padden v Bevan Ashford has taken place, and back to the Court of Appeal again! 

My gripe with the first Court of Appeal decision was that I considered that it just didn’t have regard to the realities of giving  a half hour free advice.  The course the Appeal Court said should have been followed just doesn’t reflect the realities of day to day life in the High Street.  Reading between the lines of the HHJ Vosper’s decision, which was under appeal, I have a feeling he had at least some sympathy with that view.  He couldn’t go behind the earlier decision of the Court of Appeal, that the newly qualified solicitor (now known to be a Ms. Shinner) had been deficient in her first meeting with Mrs. Padden, but at paragraph 16 we get a different flavour of that first meeting.

The judge notes that the claimant was “evidently distressed and in a rush to be back home as soon as possible”. So quite how much attention Mrs. Padden was giving to what Ms. Shinner had to tell her is doubtful.  Despite this, Ms Shinner took pity and decided to help. A human lawyer!  One who wanted to help a person in distress – not quite conforming to popular stereotype, one might say, but more common than is generally realised.

“Ms Shinner advised the claimant that she was not doing the right thing, and advised her not to sign any documents. Ms Shinner must have based that advice on her appreciation that paying off Mrs Partridge might not stop a criminal prosecution.” So the judge, upon looking with care at what happened at that first meeting realises that Ms. Shinner’s advice was focussed more closely on the key issue than perhaps the Court of Appeal first time round had realised.  If only Mrs. Padden had chosen to follow that advice!  Both she and her solicitors would have been so much better off.

The judge also said, “I find that Ms Shinner told the claimant that she was taking a huge or a big risk, and the risk to which Ms Shinner was referring was the risk that Mr Padden would face criminal charges despite the claimant's giving away her interest in the assets.” I guess this is as close to saying that she wasn’t so very negligent as a judge could reasonably get, given the earlier decision, and I commend this analysis.

Now what happened after Ms. Shinner ended her involvement was rather more of a problem, unfortunately.  A colleague wrote to confirm that “I am satisfied that this signatory understands the nature of this Deed and its meaning and effect and to the best of my knowledge has freely consented to it without undue influence or duress or in reliance upon misrepresentation.” (emphasis added).  It’s the italicised section which really seems problematic.  What’s more, he doesn’t seem to have made a note of that meeting, so he couldn’t remember what happened at it.  This was a very serious certification to have made and the lack of a record of that advice was critical.  The whole episode shows that routine certifications should not be readily available.  A solicitor has to spend serious time finding out what the whole transaction is about.  A serious charge should be made as there are serious consequences for the solicitor who gets it wrong – over £67,000 worth of consequences, actually!  Oh and the other thing?  Free advice?  So many of us now will just say no. 

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Open all hours - Technology has taken over our lives!

A few years back, I was unable to make it to a school parents evening, so I phoned to arrange an appointment to discuss my son’s progress with one of his teachers. I asked to speak to the head teacher but she was too important to speak to me. Instead I was given an appointment with one of the members of the management team. Throughout the meeting I became more and more irritated by the patronising tone which was directed at me. The deputy told me that I was asking for flexibility from the school that lawyers and accountants wouldn’t give to their clients. Now this was the last straw.   Needless to say, the conversation got slightly heated after this. I had to tell him, “Actually, I am a lawyer, and after I leave here (at 8 pm) I will be meeting with a client who cannot meet me during normal working hours - because she is a teacher!” That silenced him. 

I was annoyed by the mere suggestion that the head teacher couldn’t see me because it was out of normal working hours and that a lawyer would be exactly the same. It is simply not true. The days are long gone when lawyers worked from nine till five, five days a week, with six weeks holiday and Friday afternoons on the golf course. Through the giving of mobile numbers and e-mail addresses, lawyers have made themselves much more accessible to their clients at all hours and in all places.  For our clients, if not our families, so much the better! 

But with increased accessibility comes increased liability it seems.  David Hodson reports at this link on a decidedly troubling development.

http://www.familylaw.co.uk/articles/DavidHodson210613-954

This will writing lawyer opened electronic communications from his client over a weekend but because it was a weekend, he did nothing with them.  Basically, he completely ignored the client’s son when he knew that his client was nearing the end of his life. That element of urgency makes the key difference.  I don’t read this case as declaring open season on a lawyer’s weekends and I don’t see it as warranting interruptions to family life without exceptional cause.  However, a lawyer who wants to treat his or her time out of the office as being sacrosanct will have to learn to ignore the insistent, siren calls of the computer and blackberry!

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Padden v. Bevan Ashford solicitors – the end of the free half hour?

If you feel so inclined, you can read what happened when a young solicitor saw a client who called into her office off the street, asking for urgent advice. It's reported here:- http://www.bailii.org/ew/cases/EWCA/Civ/2011/1616.html.

What it's all about

This is a sad tale of a lady who discovered that her husband was a fraudster, it turned out to the tune of £2m or so, when his solicitor turned up at the family home demanding that she sign over all her share of the family assets to prevent the children from seeing their father carted off to prison. A couple of days later, she received in the post documents which would achieve this. She tried to find a solicitor who would advise her on the documents, that same day, but the first two solicitors, one could say hard heartedly, turned her away on the ground that the transactions were simply to substantial. They weren't prepared to take the risk.

A third solicitor, recently qualified, agreed to see her, presumably given her evident distress. In a very short meeting, this solicitor advised the client in plain terms not to execute the documents. When the client said that she would have to, the solicitor commented, I assume rather drily, that she hoped that the husband was worth it. There was no charge by the solicitor for this meeting or any other work which they did later.

Now various other things happened afterwards and the documents were indeed executed and the assets lost. Despite this, the husband did indeed get imprisoned and the parties did divorce. The wife then sued the solicitors for failing properly to advise her. At first instance, the circuit judge took the bold (to adopt "Yes Minister" terminology) step of dismissing the claim after the Claimant had given evidence. His reasoning is not set out in the appeal judgment but is summarised as being that the Claimant had not established her claim. And so it ended up in the hands of the Court of Appeal.

The Court of Appeal's judgment on the solicitors

For various reasons, the appeal was allowed. Although it was not solely dependent on the events of the first meeting, it is the criticisms of the first meeting which give me cause for concern. It may sound like sour grapes, but I do find the pontifications of judges who have never tried to provide a high street legal advice service and earn a living at it a tad irritating. They decided that the clear advice not to proceed with executing the documents was insufficient. "A solicitor, properly advising her about the proposed transaction, should have told her of the importance of finding out all the relevant facts, before she executed the four documents," they thought.

And also, "if, as was the case on 28 March, the claimant indicated that she had insufficient time to be properly advised, the proper course for a solicitor would have been to explain to the claimant that she needed full advice about the course she was proposing to take, coupled with some investigation as to the facts. She should have been told in clear terms that a hurried short meeting was simply inappropriate, bearing in mind the importance, riskiness and probable pointlessness of the transaction she was about to enter into, the inadequacy of the information available at the moment, and her inevitably upset and emotional state, coupled with the pressure being put on her. The Judge seemed to think that it was for the claimant to ask for such a further meeting, but it seems to me that a solicitor who, at least according to the 1 April letter, had given the claimant 'independent legal advice' should have explored and tested her reasons for entering into the transaction, or at least advised her as to the importance of doing so."

The solicitor's dilemma

So if the client says she is in a hurry, you still have to insist on a further, lengthier meeting, which doubtless should be charged for, which the client may or may not agree to. The real complaint seems to have been that it was pretty obvious that there was a good chance that the husband would go to prison regardless of whether or not the assets got handed over. No allowance was made for the fact that this was a very short meeting, constrained by the client needing to get back home for her children. No allowance was made for the fact that the advice was free. Surely the test should not be whether the advice was comprehensive but whether it was sufficient? The solicitor rightly said that the client should not sign the documents. Maybe full reasoning and an exhaustive explanation for that advice was not given, so what? The advice was impeccable. The client may have rejected it, for bad reasons, but why should the client be excused responsibility for her bad decision? The fact is that the client got advice for nothing and, had she followed that advice, she would have been a lot better off financially. She chose not to. As an adult of full capacity, she has that right but why does the solicitor attract criticism for not providing a comprehensive service, presumably also for nothing?

The half hour free is not worth it

To be honest, this is the only rational conclusion. If a solicitor devotes a modest and proportionate part of his/her resources to providing free advice, it simply becomes a rod to beat him/her with. No reward is generated and his insurer runs the risk of an expensive hit. Why bother? Perhaps the only way this can continue is if each free interview starts with a disclaimer of liability, except that this would doubtless fall foul of something. At a time when legal aid is contracting still further, disincentives to provide pro bono advice are really not needed.