Best Practice Guidelines

The Law Society of Ireland's Family Law in Ireland - Code of Practice states: “There is a concern that solicitors and court procedures might add to the distress and anger that can arise when relationships break down. Solicitors should deal with matters in a way designed to preserve people’s dignity and to encourage them to reach agreement. Solicitors who practise family law are advised to follow the code and explain it to clients as it will form the basis of the approach adopted.”

1. While the guidelines do not generally attempt to put time limits on each of the steps to be taken in relation to the processing of a separation / divorce case, every effort should be made to bring finality to a case at the earliest possible opportunity. The President of the High Court has issued a Practice Direction to the effect that, save in exceptional circumstances, the hearing of a family law matter in the High Court should be completed within one year from the date of commencement of the proceedings. It is the Board’s objective that similar time targets would be set for separation and divorce cases.

2. Files should be reviewed regularly for inactivity. If it is apparent that for whatever reason, the client no longer wishes to pursue the case, the client should be asked to confirm those instructions in writing. If Court proceedings are in being, steps should be taken to have the proceedings discontinued or struck out and the legal aid certificate discharged.

1. When meeting the client for the first time the solicitor should, insofar as it has not already been done, ascertain the relevant background information and should also:

• explain to the client the dispute resolution options available and the advantages and disadvantages of each option including, where appropriate, marriage guidance counselling, mediation, negotiated separation and the collaborative law process,
• ensure that the terms of Section 5 / Section 6 of the Judicial Separation and Family Law Reform Act 1989 or Section 6 / Section 7 of the Family Law (Divorce) Act 1996 are complied with, by giving the client names and addresses of persons qualified to help effect a reconciliation and to provide a mediation service,
• advise the client of the potential costs implications of remedies that might be pursued.

2. At the conclusion of the consultation the solicitor should write to the client noting their instructions and advising of the next steps to be taken.

1. If it becomes apparent that any person is proposing to deal in property with the intention of defeating any claim that the client might have, the solicitor should seek interim Orders restraining the person from disposing or otherwise dealing in the property in a manner that is likely to defeat the client’s claim in the event that the person is unwilling to give a meaningful undertaking. Interim applications of this nature should only be made where there is evidence that the client’s spouse’s anticipated conduct is likely to defeat the client’s claim for relief. The client should be specifically advised of the costs implications of any such applications.
2. It is the client’s responsibility to locate his or her spouse for the purpose of engaging in correspondence or serving court proceedings. If the spouse cannot be located and it is necessary to make an application to the court for directions in relation to service, the client will be responsible for any outlay that may be incurred by way of newspaper advertisements or other such expenses and the client should be so advised.

1. Having established the client’s instructions the solicitor should advise the client, in broad terms if appropriate, as to what he / she could expect from the Court, in the context of contested judicial separation / divorce proceedings. In terms of managing the client’s expectations, the solicitor should inform the client of -
   1. the nature of the Court process including the delays that are likely to occur
   2. the need to give evidence and be cross examined in Court
   3. the adversarial aspect of the Court procedure
   4. the possibility that the Court will impose a solution that is not to either spouse’s satisfaction
2. The solicitor should proactively explore with the client, the range of settlement options that are available having regard to;

• the family resources
• the needs of the other party
• the needs of any children of the marriage
• the client’s expectations and
• the need to manage the client’s expectations where those expectations are clearly excessive.

1. The solicitor should consider what steps need to be taken to enable the client’s case to be properly prepared. These steps may include the following:

• obtaining copies of any existing Court Orders,
• if the parties own property:

a. arranging Land Registry / Registry of Deeds / judgements / bankruptcy searches and establishing / investigating the title to, and any encumbrances on, any land / real property owned,

b. advising the client that you are not certifying title to the property and that in the event that the client acquires an interest in property, that interest is taken “as it stands,”

c. advising the client to carry out a planning search if he / she has any concerns about planning issues relating to the property,

d. obtaining details of any outstanding loans on property and of any other loans that might be outstanding,

e. considering whether it is advisable to issue proceedings and register a lis pendens if there are likely to be creditors seeking judgements against the spouse,

f. considering whether valuations of property should be obtained now or closer to the bargaining phase,

g. if there is a serious prospect of mortgaged property in joint names being transferred to one of the parties, ascertaining if the financial institution will consent to such a transfer,

• if a Pension Adjustment Order is being sought, obtaining details of the spouse’s pension benefits. Consideration may need to be given at a later stage to retaining a pensions expert,
• if there are significant assets, considering whether to retain an accountant,
• if there is likely to be a serious issue in relation to the custody of or access to the children of the marriage, getting copies any Reports that have already been prepared,
• ascertaining whether the case is likely to benefit from an independent family assessment,
• obtaining copy State Marriage Certificate,
• obtaining children’s Birth Certificates, if necessary,
• obtaining an official translation of any foreign language Marriage or Birth Certificates to be tendered.

The solicitor should have regard to the possibility of achieving a settlement at all stages of the divorce / separation process. The solicitor should ensure that the client is kept fully informed, that instructions are taken appropriately and that the client is aware of the costs implications of any settlement.

1. In the event that the parties are separating (without a divorce), terms of settlement have been agreed, and no Pension Adjustment Order is required, the solicitor should draft a Separation Agreement and a Deed of Waiver, using available templates suitably amended, to meet the needs of the individual case and arrange to have them executed. Upon execution, one original of each document should be sent to the client who should be asked to acknowledge receipt in writing. A copy of each document should be kept for the file.
2. If implementation of the proposed settlement involves services that are outside the scope of the Civil Legal Aid Act 1995, the client should be so advised and should be informed that he / she may require another solicitor to enable the proposed settlement to be fully implemented.
3. In the event that the settlement involves the client being in receipt of funds, other than a lump sum maintenance payment, those funds should be paid to the Board’s account to enable the Board to deduct costs. The client should be informed of the amount of costs to be deducted before the funds are lodged and the deduction takes place. The Board’s Circular in relation to the waiving of costs (appendix VI) may also be relevant.

1. In the event that it is possible to agree terms of settlement and Court Orders are required, those terms of settlement should be identified clearly, both to the client and the spouse’s solicitor, to ensure that there is no misunderstanding or ambiguity.
2. Proceedings should be drafted and the solicitor should ensure that insofar as possible, the proceedings are neutral in terms of assigning blame or responsibility for the break up of the marriage while at the same time stating the basis on which the separation or divorce is sought. The solicitor should also, if necessary, serve the appropriate Notice on the trustees of any pension scheme.
3. Upon approval of the settlement the solicitor should write to the client, confirming the outcome of the case and the further steps that are required to give effect to the settlement / Court Orders. The solicitor should also bespeak a copy of the formal Court Order and serve it if necessary.
4. In the event that conveyancing services are required to be provided within the terms of Appendix V, the client should be redirected to a law centre to enable those services to be provided.

1. If it is not possible to negotiate terms of settlement on behalf of the client the solicitor should then:

• give notice of the proceedings to the spouse in accordance with Section 40 of the Family Law Act 1995,
• in the event that counsel is being briefed, furnish him or her with copies of all relevant papers including attendance notes,
• arrange a consultation with counsel, if necessary and feasible,
• in the event that counsel is briefed, take steps, if necessary, to have papers returned within six weeks,
• have particular regard to the Code of Practice for Family Law Practitioners issued by the Family Law and Legal Aid Committee of the Law Society of Ireland when drafting or approving the Family Law Civil Bill,

2. Regard should be had, at any stage after the institution of proceedings, to the possibility of settlement negotiations taking place.

1. Notices of Motion seeking to compel the spouse or his or her solicitor to file an Appearance or a Defence should be issued where it is considered unlikely that the spouse or his or her solicitor will enter an Appearance or a Defence or that the spouse will actively pursue a legal aid application without some pressure being put on him / her.
2. A warning letter, enclosing a letter consenting to late filing, must be sent to the spouse / solicitor before a Motion is brought

Upon receipt of the Respondent’s Defence, Affidavit of Means and Affidavit of Welfare, the solicitor should furnish copies to the client and take the client’s instructions in relation to, inter alia, their level of satisfaction with the financial disclosure contained in the Affidavit of Means.

1. A solicitor should carefully consider with the client whether it is necessary to seek discovery from the other spouse. Discovery should not be sought as a matter of course and should only be sought where there are reasonable grounds for believing that the Respondent’s Affidavit of Means does not give a comprehensive picture of his / her financial circumstances. Discovery should not be sought on the basis of the client’s unsubstantiated suspicion that the Respondent is ‘hiding’ assets or income.
2. If the client is insistent that discovery is sought, and the solicitor is of the view that it is unlikely to be of benefit, the client should be asked to confirm his or her instructions in writing. The solicitor should advise the client in writing of:
   1. the likely delay to the proceedings,
   2. the fact that discovery will involve the production of available documents only and will not require the Respondent to compile any document
   3. the potential costs implications
3. Voluntary discovery must be sought in the approved format before a Motion is brought. A template for seeking voluntary discovery is attached hereto for assistance.

When the Defence and accompanying documents have been received and any discovery has been completed, the solicitor should:

• consider (with the barrister instructed, if appropriate) what further proofs are required to enable the case to proceed to trial including the necessity of getting auctioneer’s valuations, psychologists Reports, medical Reports, accountants Reports and pension Reports,
• carefully assess how any such Report is likely to benefit the client’s case,
• advise the client of the potential costs implications of obtaining the Report.

1. When the solicitor is satisfied that all proofs have been obtained and that there are no issues outstanding that require to be attended to, he / she should complete and file a Certificate of Readiness (if necessary) and serve a Notice of Trial.
2. In the event that it is possible to resolve matters after a date for hearing has been set, the Court should be informed at the next list to fix dates (or in correspondence if appropriate) to enable the date fixed to be vacated if necessary.

1. For the purpose of the court hearing the solicitor should:

• arrange a consultation with any barrister retained before the day of the hearing if the client has not already met with the barrister,
• meet with the client either before the hearing date or at least one hour before the case is due to be called, on the day of the hearing,
• inform the client of what is likely to happen on the day, including the possibility that the case will be adjourned or will not be completed, and the likelihood of there being some attempts to settle the matter,
• remind the client appropriately of the potential costs implications of possible settlements.

2. In the event that a settlement is not possible the client should be reminded of the nature of the evidence that he / she will be required to give and the likely nature of the cross examination. At the conclusion of the case and in the event that the judge gives an immediate decision, the decision should be explained to the client there and then and the client should be advised about the possibility of an appeal.

1. Upon completion of the hearing the solicitor should write to the client to informing him / her of the outcome of the case, the further steps that will be required to effect the settlement / Court Order, and the possibility of an appeal. The solicitor should also obtain a copy of the formal Court Order.
2. If full implementation of the Court’s Orders involves services that are outside the scope of the Civil Legal Aid Act 1995 the client should be so advised. In the event that conveyancing services are required to be provided, within the terms of Appendix V the client should be redirected to a law centre to enable those services to be provided.

In the event that the Court Orders involve the client being in receipt of funds, those funds should be paid to the Board’s account and the Board should be informed immediately. The solicitor should also furnish to the Board a breakdown of the time spent on the case and the outlay incurred to enable the costs to be properly calculated.

Upon implementation of the settlement or the Court Orders, or upon completion of the solicitor’s involvement with the settlement / Court Orders, the client should be furnished with the original certified copy Court Order and any original documentation that is on the file. The client should also be informed of the advisability of making a Will. The file should be closed within four months of the completion of the case.

Best Practice Guidelines - Separation and divorce

The Board has considered the use of best practice guidelines in order to contribute to the development of the quality of the service provided. The guidelines form part of a wider commitment to delivering a quality service to the Board’s clients. These guidelines relate to divorce and separation cases. While they have been drafted primarily with the client being contemplated as the initiator of the separation or divorce, they should be read appropriately if the client is the “respondent” or recipient of correspondence from his or her spouse’s solicitor. It should be noted that the guidelines are not absolute and what is being sought is general adherence to the guidelines. Solicitors are not prevented from taking immediate and decisive action where necessary. It may also be necessary to depart from the guidelines if professional rules or duties require it.

Appendix III

Best Practice Guidelines - General approach to file and case management

Introduction
This part of the circular deals with best practice in the provision of a professional legal aid service.

The Professional Procedures Work Group has considered the use of best practice guidelines in order to assist the management and throughput of cases and to contribute to the development of the quality of the service provided by the Board.

These guidelines have been drafted having regard to the Law Society’s code of practice which states:

“A solicitor should conduct family law proceedings, including preparation, advocacy and implementation, in the most cost-effective manner”. Code of Practice for Family Law Practitioners :Court Proceedings 7.3 issued by the Family Law and Legal Aid Committee of the Law Society of Ireland.

This circular deals with best practice guidelines on this matter under two headings namely: file keeping and case planning.

File keeping
All files should be maintained in a structured manner. As stated in the Law Society’s Office manual “all documents should be handled with care ensuring that no damage or deterioration occurs due to mishandling. All documents placed on file should be secured, no loose documents should be permitted on file”.

Recommendations for file keeping are as follows:

• one subject matter per file as per circular on opening and closing of files;
• certificates / means test forms / LAA3 kept together, preferably on the inside left cover;
• correspondence should be filed in chronological order on the file;
• status of file / next action sheet maintained;
• use standard format for factual information;
• multiple copies of papers, drafts etc., should not be retained;
• memo’s, correspondence etc. should be concise;
• documents such as pleadings, reports, valuations, marriage certificates, birth certificates of children and copies of any previous orders should be kept together in a separate folder / wallet. An index to record issued pleadings, receipt of papers, etc. should be attached to the folder

Case planning
Each file should contain an individual case plan, based on the client’s circumstances, outlining the steps that are to be taken in relation to the case. This would assist in an easy assessment of the status of the file and workload planning. The plan should highlight key stages of the file and target time frames by which each key stage should be completed. The following six key stages are considered to be the general breakdown of the stages that could arise in all files. The content of each stage would depend on the nature of the particular proceedings of the case.

Key stage 1: Initial consultation and legal advice
Key stage 2: Application for legal aid
Key stage 3: Pleadings
Key stage 4: Court proceedings
Key stage 5: Enforcement and costs
Key stage 6: File closure

Managing solicitors should put arrangements in place in the law centres to facilitate the effective arrangements of file handling and case planning in conjunction with the guidelines on a range of services as contained in this part of the circular.