In my previous post I did a case summary of the matter of DD v DHE an application which dealt with the relocation of a minor child from South Africa to Croatia. In reading the judgement it is clear that the presiding Judge decided the matter on a report from the Family Advocate on the voice of the child. After I did the case summary I was provided with the Heads of Argument in the matter.
One issue raised in the heads of argument never found it’s way into the judgement, that being the alleged conduct of the applicant’s attorneys. According to the respondent the parties engaged a social worker to attend to a voice of the child report. During this process, the social worker referred the respondent to another attorney (“attorney B”) to obtain a second opinion with regards to whether her (the respondent’s attorney of record) was advising her properly.
The respondent allegedly consulted with attorney B and in anticipation of the consultation forwarded to him a number of confidential documents relating both to the divorce and the relocation matter. During the consultation she purportedly, discussed the issues relating to both the divorce and relocation. During the consultation, she alleged that attorney B expressed to her that should the respondent mandate his firm to represent her, he would ensure that the minor child would not relocate with the applicant to Croatia. In the end she elected to remain with her present attorney of record. Approximately a month and a half later the respondent was served with an application to relocate, issued by a partner of the firm of attorney B. On the same day the respondent’s attorney via e-mail questioned the issue regarding whether attorney B’s partner did not consider himself to be conflicted given attorney B’s consultation with the respondent. In reply, he advised that he was not conflicted as it was another partner at the firm who consulted with the respondent and not him personally. He was of the opinion that there was no conflict of interest where the responsible legal practitioner at the firm for dealing with the matter was a different legal practitioner to the one who consulted with the applicant.
Our law does not recognize that the attorneys’ fiduciary duty to his client continues to exist post termination of the mandate, see Wishart and Others & Blieden NO and Others 2013 (6) SA 59 (KZP) and an attorney continues to have a duty to preserve the confidential information imparted to him through his professional relationship with his previous client, see Netcare Hospitals (Pty) Ltd V KPMG Services (Pty) Ltd 2014 4 ALL SA 241 (GJ) at para 76.
Whether there was an obvious conflict of interest is another question and may have made no difference in the court’s finding, having said that, the conduct above may raise some eyebrows.
A recent judgement, the matter of ND v PT, case number 25792/2020, granted on 18 January 2022 also comes to mind. The applicant (father), referred to herein as ‘D N’ claimed an order of contempt against the applicant (mother), referred to herein as ‘T P’, pursuant to the respondent allegedly failing to comply with a Rule 43 order granted on 11 November 2021 (the ‘rule 43 order’), regulating the applicant’s contact to the parties’ minor son, D N, (the ‘child’). The child was approximately 19 months of age at the time.
The applicant alleged that he made all reasonable attempts to procure contact to the child, including by way of letters written by his attorney of record, an invitation to the respondent to participate in mediation and two attempts to resolve matters through the Office of the Family Advocate, all to no avail. The applicant instituted a Rule 43 application on 30 August 2021 that resulted in the judgment and order delivered on 11 November 2021. The Rule 43 judgment criticised the respondent for her conduct in deliberately withholding contact with the child from the applicant and referred to the respondent’s contravention of sections 31(2) and 35(2) of the Children’s Act 38 of 2005 (the ‘Act’), absent the applicant’s prior knowledge of the respondent’s move to Cape Town with the child. The applicant alleged that the respondent used the litigation process as a means to delay and frustrate the applicant from exercising his statutory right to contact with the child.
The judge stated: “the respondent was aided and abetted by her attorney, who, as an officer of this Court was under a duty to act in the best interests of the child and not to advance the mala fide cause of his client….. The attorney’s willingness to fuel the flames of conflict was evident from both the tone and content of his correspondence annexed to the founding affidavit and the reply, both to the applicant’s attorneys and even to and about the Family Advocate.”
The mother was found to be in contempt of court, and was committed to prison for a period of twenty (20) calendar days suspended for a period of one (1) year on condition that the respondent complies with the Court order granted on 11 November 2021, the mother was also ordered to pay the costs of the application on an attorney and client scale.
Contemporary family law practice requires that the family lawyers philosophical map be redrawn so that she sees herself first and foremost as a conflict manager and problem solver. – Action Committee on Access to Justice in Civil and Family Matters (The “Cromwell Report”)
Many critics of our current adversarial family law system place emphasis on the highly aggressive family law attorney who makes use of sharp tactics and hostile techniques of representation, and thus exacerbating an already complex situation. They suggest that one should somehow find a way to reign in these rogue family law gladiators.
In a case in Australia a woman received up to five letters a day – including on weekends – from her ex-husband’s attorney. The letters were often times angry, allegedly threatening and, according to a presiding judge, inflammatory and accusatory. Regardless, the woman had to pay for her lawyers to read and respond to every letter. By the time the property and custody aspects of the bitter court dispute were settled, she and her ex-husband had accumulated more than $860,000 in legal fees. As well as the repeated letter-writing, the case also involved several court applications. It amounted to a kind of financial abuse, and one that was able to occur in the current court system.
After the case the woman remarked: “As the family court system falls apart, all of the unethical, unscrupulous, bottom-feeding lawyers converge to extract money from the carnage”. In his judgment the presiding judge noted the large volume of correspondence between lawyers that were attached to the affidavits, including some within the 500 pages of exhibits to the father’s affidavit. “Some of those letters were inflammatory and reflected the anger of the parties or one or other of them,” he said. “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 purposes. Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.” The judge went on further to say.
The judge said, “Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know. Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial well being of the parties and their children. It must stop”. The judge stated further that legal practitioners……“had a duty to minimise costs and reduce conflict. The children of these parties depend upon the income and assets of their parents to support them. Yet, in this case, the costs of the proceedings have taken a terrible toll on the wealth of the parties and consequently their ability to support and provide for their children. A formalist reading of the law says the law is about the best interests of the children. But what are the best interests of the children? That’s culturally determined. And it’s determined by the lawyers and barristers and theater performance on the day.”
As life changes, people do too, the same goes for lawyers. Lawyers are well-known for combating to adapt to change. What lawyers don’t realise is that the law does not exist for the aim of keeping lawyers employed. We live in an era where the general public have become smarter, information is freely available, and people become negative towards lawyers. Many lawyers are perceived to make money on hours billed, the longer a case stretches, the more fees in the pocket.
We have been molded by an adversarial, combative and confrontational legal system, where the law is seen as a battle of winners and losers. Family law issues on their own are emotional and value laden, adding additional complexity for the role of the lawyer.
Over-identification with clients may be complex in many areas of law, nevertheless the personal nature of family law produces a difficult task for isolating the client’s problems from the lawyer’s personal history. Family law consists of of personal and intimate matters and the most susceptible members of our society – children. The issues can lead clients and lawyers to feel passionately, particularly when we have our own histories. However, clients will not be well served if lawyers are not able to work together on effective and proportionate dispute resolution and solutions to the issues. We must separate clients’ views from those of lawyers and acknowledge that, as lawyers, we only fully have one side of the story. What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses taking part in a family breakup, the most aggravating time of their lives, to do so?
Family law is rapidly transforming towards a non-adversarial dispute resolution process. Most civil litigation disputes are linear: there is an incident, a claim, and a resolution, then the parties go their separate ways. In family law, the parties may stay interconnected if they have children; which means that, they will stay in each other’s lives, at the very least participating in family gatherings. If there are maintenance obligations, they may be financially connected for an indefinite duration. Family law consists of reviews and variations, which means the parties may review issues when there is a change in circumstances. In other words, family law issues are not always linear and do not always allow for a clean break. Clients will need to communicate over time.
Social science research over the last two decades has made a strong case that children’s well-being following parental breakup is reliant upon their parents’ conduct during and after the separation process. A great deal of the research shows that the higher the levels of parental conflict to which children are subjected, the more damaging the effects of family dissolution.
As two leading reformers stated, “in the last quarter century, the process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room”.
We should acknowledge the contaminating and toxic nature of the whole adversarial court-supervised divorce and care and contact process and start to move divorce completely outside of the court’s grasp. This can only happen if there is a mind shift in the minds of Family lawyers.
Compiled by Bertus Preller, Family and Divorce Law Attorney at Maurice Phillips Wisenberg in Cape Town. For more information on Family Law, Divorce Law and Separation, read here.