Book Reviews
| DOI | http://doi.org/10.1111/1467-6478.00205 |
| Published date | 01 December 2001 |
| Date | 01 December 2001 |
Book Reviews
FAMILY LAWYERS: THE DIVORCE WORK OF SOLICITORS by JOHN
EEKELAAR, MAVIS MACLEAN, AND SARAH BEINART
(Oxford: Hart Publishing, 2000, 242 pp., £25.00 (hbk) £15.00 (pbk))
This monograph looks at the work of solicitors who practise family law –
more specifically, the ‘private’ (divorce and separation) aspects. The impetus
for the study lay in the generally hostile, or at least sceptical, view of
solicitors which was reflected in recent legislation and procedural initiatives.
As the authors put it, this is a context ‘in which official thinking is still
dominated by the view that the way lawyers deal with divorce generates
conflict and cost’ (p. 6). The authors contend – and they are surely right –
that many of the assumptions upon which this negative view of the legal
profession rest are not rooted in empirical evidence. One example of this
misrepresentation is the frequently repeated canard that the alternative to
mediation (upon which the policy gods have smiled of late) is litigation and,
more particularly, adjudication.
The practice of family law matters in human terms and it also has
significant financial consequences both for the parties themselves and for the
Exchequer. The authors estimate that in 1995/6 a total of some £550m was
spent in funding family work. Of this some £393m was spent by the Legal
Aid Board, now the Legal Services Commission (LSC).
The authors provide an absorbing review of the context for their study. At
the heart of this lies the Family Law Act 1996 which introduced a new
mechanism for obtaining a divorce decree (since abandoned). Divorce was to
be obtained by a ‘process over time’, with all fault elements removed.
Furthermore the Act privileged the delivery of ‘information’ and mediation
over legal advice and representation. Supporters of the Act were in no doubt
of its significance. The authors quote Simon Roberts:
For the first time since the Matrimonial Causes Act 1857, the management of
divorce looks as though it may slip from the grasp of lawyers. If the legal
profession acquiesce in this revolution, not only will practitioners and judges
have to be content with a far less dominant role in the process of divorce, but
academic lawyers will also feel the draught as whole areas of knowledge
around divorce cases cease to be within the discourse of law.
1
Eekelaar and Mclean are ideally placed to address and, through their own
investigations, to challenge the dominant thrust of policy through the 1990s.
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1 S. Roberts, ‘Divorce Reform Green Paper: A coherent and radical vision’ (1994) 24
Family Law 204.
This had a number of key themes in addition to those encapsulated within the
1996 Act. For example, there was an interest in achieving greater
predictability in determining the outcome of ancillary relief (money and
property) applications, whether through legal endorsement of pre-nuptial
contracts or, secondly, through developing tighter rules governing the
division of financial assets. Both of these developments were, incidentally,
strongly resisted by the legal community. The authors of this monograph
support the lawyers on this one, although whether they are right to do so is a
moot point. (The following judicial statement, which they quote, does not
invite immediate acquiescence: ‘The function of the Family Division judge
is not so much to state principles as to reflect the relevant circumstances of
the particular case in the discretionary conclusion.’
2
)
Other key features of the legal environment include procedural change,
especially that encapsulated within the so-called Ancillary Relief pilot
project – a further attempt to reduce cost and delay by increasing court
oversight over the conduct of financial applications. (The authors are
sceptical of this likewise, although it seems generally to have found favour
with the profession.) There has also been the development of a new form of
contractual relationship between the public funder and family lawyers. Since
1998 legal aid has been progressively controlled through a system of block
grants from the LSC to law firms. Legal aid, in other words, is no longer a
demand-led service. As these authors point out, this has led to far fewer firms
offering family work under public funding (especially in London) and it has
also, as they put it, sharpened the ‘watershed’ between preliminary legal
advice on the one hand and assistance and representation on the other.
So much for the context: what contribution is made by this book? It has to
be said that this monograph takes its place within a tradition of academic
exploration of the reality of legal practice. This work includes Maclean and
Eekelaar’s own study of maintenance after divorce,
3
research conducted at
Cardiff which examines how parents cope financially on marriage
breakdown,
4
and – perhaps the most obvious precursors to this study –
Richard Ingleby’s study of solicitors’ divorce practice,
5
and my own work
with Stephen Cretney.
6
There has, in other words, been a rich vein of socio-
legal research in this area. This is all very helpfully summarized by the
present authors and, for the family law student, one can thoroughly
recommend the overview of research in the area which is contained within
the opening chapter. As the authors point out, it is striking how this
information has been largely ignored by the policy community in the lead-up
603
2Atkinson v. Atkinson [1995] 2 FLR 356, per Thorpe J.
3 J. Eekelaar and M. Maclean, Maintenance and Divorce (1986) 92.
4 G. Douglas, M. Murch, A. Perry, K. Bader, and M. Borkowski, How parents cope
financially on marriage breakdown (1999).
5 R. Ingleby, Solicitors and Divorce (1992).
6 G. Davis, S. Cretney, and J. Collins, Simple Quarrels (1994).
ßBlackwell Publishers Ltd 2001
to the passage of the Family Law Act 1996. Perhaps, however, it is not so
remarkable: the ‘messages’ emerging from these various studies are complex
and not necessarily pointing in a uniform direction.
There are various ways of going about discovering what solicitors do in
practice and the choice which these authors made was, firstly, to engage in
direct observation of the practice of selected solicitors; and secondly to
conduct interviews with those same solicitors in the course of which they were
invited to ‘talk through’ a pre-selected case. These methodologies have
limitations in my view (for example, the ‘consumer’ perspective is obviously
unrepresented, and there is also no opportunity to study progress – or lack of
progress – over time; there is also the likelihood, as the authors acknowledge,
that they may have been observing the more ‘committed’ end of the
profession). None of these limitations (and all empirical research methods,
let’s face it, have some) fatally undermine the authors’ project of providing a
powerful, instantly recognizable portrayal of family lawyers’ everyday work
and relationship with their clientele. Most of the key ‘findings’ will come as
no surprise to those who have read the earlier research. For example, family
lawyers do not aim to ‘win’ their cases. They do their best for their clients
within the limitations of case law and the parties’ own straitened circum-
stances. Especially, they do their best for the couple’s children. The lawyers’
role, in other words, is to ‘accompany and guide’ the client through this
process (p. 70). The obvious comparison is with social workers and general
practitioners rather than with the more conventional image of the divorce
lawyer, although the latter may still be in evidence in some big-money cases.
Negotiation is obviously a key aspect of what family lawyers do. The
‘decisional matrix’ presented on page 90 has been disarmingly referred to by
John Eekelaar as ‘just something you can do with egg cups’, but in fact
nicely encapsulates the different influences which bear upon the conduct of
these cases. The three key elements identified by the authors are: i) lawyers’
perception of their own clients’ interests; ii) the normative standards which
are set by the legal framework; and iii) the expression of client autonomy as
this is revealed in the clients’ instructions.
The authors’ conclusion is that solicitors do not, by and large, string out
their cases for profit. That, I am sure, is true, although I am not persuaded by
the authors’ argument that this lack of profiteering is confirmed by family
lawyers’ ‘firefighting’ (that is to say, unplanned and generally reactive) style
of day-to-day case management. I would suggest that this, very much a
feature of the account presented in Simple Quarrels, is reasonably financially
efficient from the solicitors’ perspective. It is one way of controlling
workload and at the same time maintaining a steady income. In other words,
I would not necessarily draw these authors’ conclusion that a reactive case
style means that lawyers are not behaving in a business-like fashion when it
comes to day-to-day case management. Personally, I would be more critical
here. I think this approach serves lawyers perfectly adequately; it doesn’t
serve their clients.
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