Inside the one lawyer model: what new research reveals about practice, challenges and the future of joint advice

A recent report funded by the University of Warwick and undertaken by Dr Rachael Blakey  examined the way in which the service was delivered by those family lawyers surveyed. Certain key factors were found to be common while others varied in the approach adopted.

Initial screening was conducted by all participating lawyers but there was variation in approaches.

The majority of lawyers surveyed began the screening process with a joint meeting while a number of lawyers started with separate screening meetings instead. Further consideration was recommended as to best practice in this area.

Of those lawyers who began the process with a joint session, some treated this as an information meeting, with screening lightly embedded in the structure while others regarded it as the first of two or more screening opportunities.  All went on to have separate individual screening meetings with each client, following the joint session.

The report considered the lack of a uniform approach to structure in this area and whether an initial joint session, prior to individual screening sessions, went against the guidance under the Resolution Together model but concluded that this allowed for a flexible approach, which is responsible to the parties’ needs and the structure was therefore something which could be determined by the lawyer on a case-by-case basis.  However, it was noted that such flexibility brings potential risks, including the possibility of inadequate screening practices that could, in turn, compromise the integrity of the format itself.

There was also variation in structure throughout the process.

It was a common factor that once the process began, most of the contact between the lawyer and their clients was by way of joint meetings.

Over two-fifths of those interviewed adopted a ‘meeting-led’ structure, starting with a joint meeting to set out expectations and begin financial disclosure and then a number of advice meetings following the completion of disclosure to consider options. This approach was suggested to be more costly and time-consuming than the other approaches adopted.

Over a quarter of those interviewed adopted a ‘disclosure-led’ approach, with the first joint session taking place after financial disclosure has been completed. This format typically involved a joint review of financial information, an options meeting, and a meeting to assess proposals.

The final approach adopted was deemed to be ‘advice-led’. Financial disclosure was completed prior to any meeting, but the structure then moved straight into advice, without any review of this disclosure. In some cases, this approach may have been adopted where clients were already largely aligned in their agreement.

The report did not seek to determine what the best practice is in terms of the approach to the structure of the one-lawyer process, recognising that there would be professional or personal preferences as well as a requirement to adapt to the parties’ needs. It did, however recommend that further investigation be considered as to the extent to which lawyers practising in this area are holding meetings to review the agreement once reached, which was felt by some to be an important safety-net.

The majority of lawyers involved referred their clients to other professionals during the process.

Two thirds of those interviewed referred to the need for financial advice and/or expert reports while other referrals included in-house lawyers, early neutral evaluators, family consultants and divorce coaches. 

Over a third of the lawyers participating in the survey reported pausing the one-lawyer process to enable each of the couple to seek individual legal advice to clarify or resolve a conflict e.g. whether to have a company valuation.  Further research was suggested in relation to how lawyers are dealing in practice with the situation where the couple decline to take independent legal advice if this has been recommended and whether this rendered the process unfeasible if it resulted in an unresolved legal issue.

It was also reported that referrals to mediation were being made by the jointly instructed lawyer to enable the separated couple to resolve discrete points which may have arisen and would otherwise prevent the one-lawyer process from continuing.

Post-agreement steps.

There was an expectation from those lawyers interviewed that the process would conclude with a binding consent order. The need for judicial training on this model was highlighted by some evidence of negative judicial reactions to orders reached through this process and consideration was recommended regarding the need to update court guidance and forms to more easily allow a jointly instructed lawyer to engage with the online portal, with a reported inconsistency in the approaches being adopted by those lawyers practicing in this area.

The report sought to explore lawyer’s understanding of their role in the one-lawyer process, with some ambiguity being identified and outlined the importance of a strong theoretical framework for this model to work.

Supporting the parties to reach agreement.

Those interviewed felt they provided support to the couple to reach an agreement by ensuring their decisions were fully informed, particularly in terms of legal rights and obligations.

Distinguishing the one-lawyer-two-clients model from negotiations.

Many of those interviewed felt they could provide joint support even if the couple disagreed over a certain aspect of their settlement. It was recognised however that the extent to which the lawyers could intervene in cases where an issue or conflict arose was limited by the parameters of the one-lawyer model. Given that the lawyer could not be involved in negotiations between the parties, the process was not regarded as a form of non-court dispute resolution.

Provision of legal advice a key factor.

A consistent theme recognised by the lawyers interviewed was that their role within the process involved the provision of legal advice to both clients.

This advice was general, rather than partisan or strategic, with the distinction being that such advice was identified as being framed around gaining a shared understanding between the parties, rather than creating an individual advantage, and being primarily offered to the parties as guidance, not absolute instruction. The need for training and guidance to support lawyers in providing this type of advice was identified to ensure good practice.

Neutrality as a conceptual underpinning.

One third of those participating in the survey understood their role as neutral or impartial although the report highlighted that not all interviewees adopted this conceptualisation, suggesting there may be some ambiguity on the part of lawyers involved as to what they could/should do under this model.

Conflicts of interest.  

All of the lawyers interested recognised the importance of identifying conflicts of interest - where the separated couple were not aligned on a particular issue - and were alive to the principles applicable to this in the context of the one-lawyer model. However the report identified that there may be inconsistent interpretation or insufficient engagement in practice when dealing with conflicts of interest, which could lead to inappropriate cases being screened into the process.

The report does not suggest that there is a flaw in the theoretical design of the one-lawyer model but it does point to a potential gap between the theoretical foundations and how the format is actually understood and adopted in practice. An ongoing dialogue is recommended to address any ambiguities.

The report considered the extent to which there should be regulation of the one-lawyer format. There is currently no mandatory or profession-wide regulation specific to the one-lawyer model. The framework provided by Resolution is a voluntary one, without comprehensive regulatory oversight. In light of this, debate has arisen about whether to introduce more formalised regulation of this area of practice.

Concerns around the one-lawyer practice.

The report identifies variation in the approach to the one-lawyer model, which gives rise to a risk that some lawyers could be improperly conducting the process.  Concerns were raised by those practising in this area about the potential for variation in approaches to safeguarding and dealing with conflicts of interest.

Participating in Resolution Together training.

While the majority of those interviewed had attended at lease some of the Resolution Together training, a significant portion (two fifths) had not.  Some of those who had not attended had been providing joint advice before the release of the Resolution Together model, and some cited their experience as a non-court dispute resolution practitioner as a reason for not attending the training.  There did appear to be high levels of engagement with the training by those lawyers who had only started providing the service after the Resolution Together model was launched.

The report highlighted one instance of the Resolution Together material being used and the term featuring in marketing despite the lawyer not having attended Resolution Together training. It was noted that there was the potential for future reputational damage to the Resolution Together model if members were to adopt the terminology without following the relevant guidance. Currently Resolution do not require members to attend the training before marketing themselves as a Resolution Together lawyer but and it is suggested that consideration may be given to introducing such a requirement. 

Reflections on Resolution Together training.

Within the survey, most of the feedback from those who had attended the training was positive. Gaps in the training were identified, highlighting the need for additional consideration as to the structure of this.  Some queried whether the allocated time for modular training was sufficient or led to content being skipped. Others expressed concerns about the recommended approach to screening or conflicts of interest.  

The report highlighted the balancing act between providing training or regulatory guidance without restraining the lawyers practicing in this area unjustifiably – given the importance of a flexible format which can be adapted to the case at hand.  It is suggested that a dedicated code of conduct and/or further written guidance may be of benefit, with the majority of the Resolution Together guidance remaining discretionary to allow the necessary flexibility.

Lack of consensus on mandatory regulation.

Some of those interviewed felt that mandatory regulation would address concerns around improper or unethical practice while others felt this was unnecessary given the existing regulatory frameworks for solicitors and barristers. Various options were considered including a mandatory accreditation process for Resolution members and continuing professional development rules, or mandatory regulations for all family lawyers providing joint advice under any one-lawyer model. The report highlights that excessive regulation may deter the provision of advice under the Resolution Together model, leading to one-lawyer models being provided with little oversight and the need to strike a careful balance between maintaining high standards and ensuring practitioner engagement.

Potential regulatory reform.

The report considers three suggested potential avenues for reform. First the introduction of some form of mandatory dispute resolution training for those undertaking one-lawyer work, recognising that experience of working with two people – such as in mediation or collaborative law – is considered by many of those surveyed as an essential prerequisite to being able to support both parties through the one-lawyer model.

Secondly, there was consideration as to whether there should be a seniority requirement, with those providing joint advice having to be qualified for a certain length of time before undertaking this area of work, in recognition of the potential complexities and challenges involved.  

Finally, consideration was given to whether there could be a benefit to the introduction of support groups, networks and mentors to lawyers practising in this way. It was reported that the practice of the one-lawyer model can feel isolated and having a one-lawyer community could provide support, as well as accountability and oversight.  If mandatory regulation requirements were to be introduced, there may be a more defined professional ‘home’ for lawyers practising in the one-lawyer model, similar to the way in which the Family Mediation Council and the Institute of Family Law Arbitrators operate for their members. 

Dr Blakey’s report is a fascinating read and an interesting insight into how this developing area of practice is actually operating in reality. I found the individual feedback from participating lawyers to be a though-provoking read and it gave me a lot to think about in terms of best practice, and in my view there would be a benefit to some form of one-lawyer community and potentially to a more structured framework of ongoing guidance and regulation.  

It is clear that there is a pressing need to assess the effectiveness of the one-lawyer format, as well as its implications for both lawyers and their clients.  It is encouraging that those involved in the survey reported high settlement and client satisfaction rates and this will hopefully prompt further similar research to help us understand how our clients are experiencing the one-lawyer model and to feed into discussions and debates on the future of guidance and regulation in this area.  

Shining a light on the realities of this new and innovative process can only benefit both those practising under the one-lawyer model and - most importantly - those families experiencing relationship breakdown for whom we strive to deliver accessible, affordable and appropriate support.