Lawyer provide legal advice. Attorney at law, consultant.

Is it your Solicitors role to say exactly what you want them to?

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: 

Some of those letters were inflammatory and reflected the anger of the parties or one or other of them.  The letters were at times accusatory.  They were often verbose and at times involved unnecessary tit for tat commentary.  Some of the letters served little or no forensic purpose.

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. 

If you have any questions relating to the above information, or you would like to receive advice on how to best resolve your family law matter, please do not hesitate to get in touch with one of our Accredited Family Law Specialists.


Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.


More posts

When are liquidators required to seek approval to retain legal counsel?

When does a liquidator (or the company he or she is appointed to) need court, creditor, or committee approval to validly retain a solicitor to act in a liquidation matter which is likely to extend for longer than three months?  The answer to this question has only recently been settled.

Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

The NSW Building Commission’s extraordinary powers

In late 2023, the NSW Government passed the Building Legislation Amendment Bill 2023 (Amendment Bill). The Amendment Bill established the NSW Building Commission and granted it extraordinary powers to enter construction sites, inspect work and take away information and materials.

© 2024 Coleman Greig Lawyers   |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230