This is a guest post by Mena Ruparel. Mena (@avoidgravity) is a solicitor and co-author of “How to be an ethical solicitor” published by Bath Publishing.
On 31 August the Court of Appeal handed down the judgment in the big money case of Mr and Mrs Hart. Mrs Hart unsuccessfully appealed the decision of the trial judge, her solicitors were on hand with their views which they published on their website. In the opinion of Partner Nicola Walker, “the decision of the Court of Appeal leaves the law in a state of flux”. Her opinion has been widely shared in the family law community, often as though it were a statement of fact.
The full judgment wasn’t widely available until a week later when it was posted to bailii. In the interim period however a number of newspapers reported on the judgment, some of the comment stemmed from the aforementioned press release.
The Sun reported that Mrs Hart would have to make do with the £3.5million pay out (she actually received £3.56m but who is splitting hairs over a stray £60,000?). According to The Sun “top judges” told her to “lump it” in respect of the appeal, it goes without saying that Lord Justice Moylan didn’t include those words in the judgment.
The Sun and Daily Mail both included excerpts paragraph 104 from the judgment, “The judge was plainly entitled to find that the husband had substantial wealth at the commencement of the relationship, because this was agreed.” It seems that both journalists had access to the judgment and had at least read the concluding remarks of Lord Justice Moylan.
The following day the Law Society Gazette reported on the case with the headline “Divorce ruling ‘leaves law in state of flux’”, quoting and crediting the comment to Nicola Walker in the article. Two family law solicitors gave very broad views, I can only assume that they had not read the judgment. The Gazette report makes no specific reference to the judgment, not even paragraph 104 cited in the reports from the previous day. Even in the absence of the full judgment that reported paragraph makes it clear that there were good reasons for the departure away from equality in the husband’s favour.
Social media was buzzing about the reporting of this new case with many practitioners commenting on the Gazette report. Experienced practitioners such as Philip Marshall QC were sceptical about the “state of flux” conclusions being drawn. Others, such as Mark Harrop astutely recognising that much of the information being cited came from Mrs Hart’s solicitors.
What happened over the next few days is quite unusual as a number of solicitors wrote blog pieces about the case, apparently without reading the judgment.
On 4th September (3 days before the judgment appeared on Bailii) a firm blogged that the Court of Appeal “may have reversed a long held assumption that, in a long marriage, the source of marital wealth has no bearing on the division of the assets in a divorce.” They refer to the “state of flux” opinion expressed by Mrs Hart’s solicitor.
The firm also use the paragraph 104 quote from The Sun/Daily Mail, although apparently without putting two and two together. They do not set out whether they have read the judgment in full but they do link to an external article published by STEP. The STEP article published on the same date appears to be their source material.
When I studied history at school my A level teacher cautioned us to examine source material before placing too great a reliance on it, solicitors should bear this in mind when writing blogs. The STEP article the firm links to clearly states (as the end) that the judgment was not available at the time of writing their article. They cite their sources as the Daily Mail article, reports from various newspapers, Nicola Walker’s opinion and another law firm blog.
To avoid confusion – a firm wrote a blog, without reading the judgment. They link to their source material which states that the judgment wasn’t available on the date the article was written. The bulk of the material STEP used came from the opinion comment of Nicola Walker, or blogs and articles written by people with no access to the judgment.
This is only one example of a firm of solicitors using second or third hand material to comment on the “state of flux” of the law without reading the judgment.
By 4th September I was wondering if I’d missed the judgment being handed out to all the family lawyers (except me), I sent out a twitter plea for a copy of the judgment. Within the hour the wife’s solicitors had kindly offered me a copy and sent it over (my thanks to them).
I wrote a short summary of the case for the Law Society noting that this was a storm in a teacup. @modern_divorce wrote a twitter thread (23 tweets no less), with much the same view. We both observed that there was quite a lot of filling in the blanks going on by solicitors.
Solicitors are held to very high standards, we are required to behave in a way that maintains the trust the public places in us. We are also required to act with integrity and ethically at all times whether in the office, at the pub and on twitter (even if we are at the pub whilst on twitter which is a dangerous combination).
As if to hammer that message home the SRA published a Warning Notice to solicitors over the summer which is relevant to the social media aspects of this case; “social media by its nature tends to encourage instant communication without the necessary forethought”.
“You must at all times be aware of the content you are posting and the need for professionalism.”
Solicitors read the online reporting of this case, the opinion comments of Mrs Hart’s solicitor and thought they needed to be first in line to produce “content” for their clients, websites and the general public. They jumped to blog without checking the facts, without reading the judgment or even questioning if anyone else had read the judgment. They used what they had, filled in the blanks and hit publish.
Solicitors should make sure that the next time they blog about the “law in a state of flux” they check where that information comes from. They should then assess whether they want to pass on a third party’s opinions and how to do so in the most balanced, transparent and ethical way.
In my opinion, it can cause reputational damage to a firm and solicitor to write an article riddled with inaccuracies, citing no sources and worse still using second and third hand summaries of the facts. Without a doubt this is the ‘fake news’ of the legal world, beware second hand thinking.
[Minor typographical errors corrected 10/9/17]