Lawyers in Glass Houses (or, indeed, Cubicles)

Paris Hotel de Ville ready for a visit by George V and Queen Mary. From the Universite de Caen collection on Flickr Commons.

Paris Hotel de Ville ready for the state visit of George V and Queen Mary in April 1914. From the Universite de Caen collection on Flickr Commons.

Not long ago, I visited two very different solicitors’ offices in the space of the same week. The first was a stone-built Victorian warren of rooms in a rural Derbyshire market town. The firm had been in the same premises since at least the mid-nineteenth century, and it showed: from the faded posters advertising farm auctions that had taken place before the first world war, to the massive walk-in safe which was itself literally big enough to accommodate a meeting, it was testimony to the part that the firm had played in the local economy, and the ties that bound the two together. It was also dark and gloomy, badly organised for modern business needs, and I suspect the winter heating bills are tremendous. On the other hand, it had character by the bucketload.

The same week I visited the offices of another firm. The office building itself dated from the 1920s, but the designers had been given free play over the interior. Open-plan ruled. The old dividing walls between rooms had been swept away, and glass partitions now divided the working areas, including the meeting rooms. One particularly striking feature was the design of two meeting rooms on the ground floor, which had full-height windows on the street side, and full-height glass partitions on the interior side. If the window blinds had been raised, the effect would have been pretty much as if you were holding a meeting in a terrarium, with the added feature that any stray passer-by could stand and watch you (and presumably peer at the documents on the table if they felt so inclined). Understandably, therefore, the window blinds remain permanently lowered, at least on the street side. It seemed an odd place to put a meeting room, but perhaps the exigencies of the building demanded it.

These offices were light and bright and, I imagine, much more cheerful and pleasant to work in; but they seemed much less connected to the local community and the local economy. They also have far less character: I visit more or less the same office in different parts of the country all the time. Something always seems to get lost when the designers get going; and there are other dangers in glass walls, as  S v J & Ors [2016] EWHC 586 (Fam) demonstrates.

S v J is an interesting decision, which will feature in the upcoming edition of Family Property News. Ms S sought (and obtained) declarations under the MWPA that she owned substantially more of the equity in two properties than her partner, Mr J. There will be more detail on the trusts of land aspects of the case in FPN, but one other feature was that Ms S claimed that she had been placed under considerable pressure by Mr J to enter into a mortgage re-financing deal which was very much to her disadvantage. Mr J was described as having a volatile temperament, and Ms S’s evidence was that she was “walking on eggshells” during the time that the deal, which was his pet project, was being put together. She was caring for one child of less than a year old and was pregnant with their second child, and in the circumstances felt extremely vulnerable.

When Ms S attended the solicitors’ office to execute the charges and receive independent legal advice about her position, the meeting took place in a glass-walled room. Mr J was outside the room throughout the meeting, waiting in the reception area. The Judge (Roberts LJ) noted that “throughout the course of this one to one meeting, the applicant told me that she could see the respondent through the glass wall. He was sitting in the reception area looking at her”. It is not expressly said that this situation was at the very least stressful for Ms S, but given that she specifically mentioned it in her evidence, it is likely that it was.

In fact, Ms S was at that moment being given very clear (and very sensible) evidence not to enter into the charges, but one suspects that the impact of that advice on her was substantially decreased by her being under observation by Mr J throughout. Matters cannot have been made any easier by her awareness that the solicitor was telling her the opposite of what Mr J, who was directly in her eyeline, had been telling her about the whole arrangement.

As it happens, Ms S did not claim that she was entitled to set aside the charges as against Mr J because of his undue influence; the facts of her case did not support it. But it’s clear that this situation could well arise in cases where there is either real or presumed undue influence, and the fact that the oppressor was able, throughout a crucial interview, to glare at the oppressed might be important. It’s all too foreseeable in such circumstances that a client might well come back to the solicitor and complain that her interests were not properly prioritised, and that she should not have been put in a position where her oppressor was able to fix his eye on her in an intimidating manner through a glass partition.

At the very least, ensuring that the client has a safe space, where she can hear and respond to independent advice away from the gravitational pull of the person who wants her to enter into the transaction, is good client care. It’s good care even if you have no reason to believe that there is any possibility of undue influence; the whole point of the “independent legal advice” requirement is to get the client to focus, unimpeded, on her own interests and position, and the requirement to give that advice arises when she is proposing to enter into an agreement to her disadvantage, not when there is any suspicion that undue influence may be at work.

In other words, when you give independent legal advice in a glass-walled office, lower the blinds. Better still, ensure that the client is given advice well away from the person who will benefit from the transaction, and certainly not within his field of vision.

In this respect at least, the antiquated offices in Derbyshire — with its massive panelled doors and gargantuan Victorian furniture — would have suited the purpose better than the light, bright city offices. It would hardly be possible to imagine a safer space, although it would certainly be possible to imagine a more comfortable one. The old ways are not always the worst.





Bank Accounts — New Guidance for Carers (and Banks)

The Bank of England, decorated probably for the coronation of Edward VII in 1902. From the Library of Congress collection on Flickr.

The Bank of England, decorated probably for the coronation of Edward VII in 1902. From the Library of Congress collection on Flickr.

The Law Society has joined with the British Banking Association, the Building Societies Association, and the OPG among others in producing two guidance booklets for those carers and family members trying to deal with a relative’s bank accounts when the relative is unable to do so for one reason or another. One short booklet is aimed at the carer, and is definitely worth passing on to clients; however for my money the really important booklet is the one giving guidance to banks and building societies about how to deal with third party requests in this context. From a practical point of view this area of law and finance has been chaotic, with different financial institutions requiring different items of evidence and proof, some of them completely unreasonable. I have not had an opportunity to look through the booklet in detail yet, so I can’t say whether the guidance given errs on the reasonable or unreasonable side, but the important thing for the practitioner is that there is (finally!) a code of guidance to which a bank or building society employee can be directed and asked to follow. At least we are getting to a point where both sides know what is required of them, and that’s a start. You can find the Law Society posting on the booklets here, and there are links to the booklets themselves at the bottom of the page.

Smile, You’re on WillCam

Portrait of William "Uncle Bill" Lundy, a veteran of the US Civil War, taken in Florida in 1955

Portrait of William “Uncle Bill” Lundy, a veteran of the US Civil War, taken in Florida in 1955

There have been a few articles this week about a study by Dr Claire Royston and Robert Hunter assessing lawyers’ ability to gauge testamentary capacity. The results of the study were alarming, to put it mildly. Participating psychiatrists and solicitors were shown two [scripted and dramatised] client interviews with a businessman in late middle age looking to make a will: one demonstrating a good interview technique and the other, ahem, not. The client had suffered a stroke, which he apparently disclosed in both interviews, but he was still the possessor of what is described in the reports rather charmingly as a “social veneer”.  However, there were sufficient clues for an alert lawyer to pick up that he might not have testamentary capacity, and in fact he did not.

For me, the really striking thing about the study is that when shown the “bad” interview technique, only 2% of lawyers spotted that the client potentially had a mental disorder and only 33% identified that there was a capacity problem. Robert Hunter commented that it is easy for solicitors “to confuse social graces with mental ability”, a view which I thoroughly endorse. When shown the “good” interview, 90% of the solicitors identified that there was a testamentary capacity problem.

This is an eloquent demonstration of how vital it is, when taking instructions for wills (and I would suggest powers of attorney too) to get the interview technique right. It is all too easy to be lulled into a false sense of security by a client who is telling you that s/he had a stroke six months ago but has made a marvellous recovery, particularly if s/he is appropriately chatty and forthcoming. Everyday politeness does not give you any real idea of whether s/he is in a fit mental state to make dispositions and can mislead you into thinking that the client is on the ball.

More than anything else, this study reinforces the point that taking will instructions involves connecting with the client on a friendly but objective level, and being watchful about what you see and hear. Robert Hunter commented that the “golden rule” that, when drawing up a will for an elderly person or someone who is seriously ill, a solicitor should try where possible to have the will witnessed by a medical practitioner, is often ignored without good reason. Although GPs are sadly not as connected with their patients now as they were in days gone by, a family doctor will often know right away whether a prospective testator is not on their usual mental form.

It is an unfortunate by-blow of recessionary times that disappointed legatees are much more likely to litigate over a will. In the past couple of weeks alone, we have had Paynter v HinchKloosman v Aylen and Schrader v Schrader, some at least of which I hope to note more fully in the next week or so. There is a higher probability these days that the capacity of a testator will be at least queried and probably scrutinised.

The report apparently made five recommendations, including enhanced training in interview techniques for solicitors; creation of an association of specially trained solicitors to take instructions in problematic cases; and an increased awareness of mental capacity issues in this area. I enthusiastically support all of those, though I’m not so sure about the recommendation that there should be professional sanctions for a failure to observe the golden rule “without good reason”. That would in practice make medical witnessing more or less de rigueur in the execution of any elderly person’s will, and it seems to me that the more important factor is for the will draftsperson to be alert and to listen and observe carefully and sensitively rather than simply “doctor up”.

The last recommendation is that there should be videotaping of testamentary interviews, about which I have my doubts. There is always the forthright and flamboyant (or even defiant) testator who will enjoy the experience of giving instructions on camera, but most of us are reluctant enough to be bit-players in wedding videos, let alone starring in our own Truman Show in which we give what are often the results of intensely private and deep thought. This is probably particularly the case where the testator knows that somebody in the family is going to be disappointed by the effect of the Will. I suspect that few people really want to be video’ed upsetting a close relative’s expectations, however well-deserved they believe the comeuppance to be. It is going to be a matter for individual testators, obviously, but it seems to me to hold the danger of putting the desire for certainty above consideration for the elderly or dying person.

You may well now be saying, “Gosh, this seems like an interesting report: where can I read it?” My answer, after several attempts, is that I don’t know. It is possibly my IT ineptitude [should that be ineptITude?], but I can only find secondhand accounts of it and not the source material. If you have better luck, let me know.