Should my solicitor have contacted ex's solicitor even though he's no longer acting?

[dazed]

I recently instructed a solicitor regarding a family court matter, and she asked for the details of the mother's solicitor.

I explained - with evidence of forwarded email - that he was no longer instructed in the family court matter, nor on the record for the same, for some time.

Despite this, she emailed them and they wrote back confirming that they were no longer instructed in the matter, but still sent her what they called a "reduced bundle" ... "as a curtesy[sic] to the court" - basically a selection of their side of things.

It now appears my solicitor has acted almost entirely on the information from the other solicitor who is still acting for the mother in the vexatious matter of a property dispute (currently being looked at for me by a different solicitor specialising in litigation, not family. It's complicated!)

In these circumstances, is this either legal or accepted/acceptable practice?

I am considering a formal letter of complaint regarding several things; most are more clear cut, but I need to ensure everything is valid and on point if we cannot reach resolution and it eventually goes to legal ombudsman.

Thanks.

[R0b]

Unless there's something else to this story that you've not mentioned, the answer should be no. If the solicitor is no longer acting for you then they should refrain from doing anything without your instructions and it would have been fine for the solicitor to simply say that the firm is no longer instructed and leave it at that.

If you feel strongly about this, you could report the firm and solicitor to the SRA directly for breach of the Code of Conduct (also worth mentioning in your complaint letter too). Section 3.1 of the Code of Conduct says:

You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you have satisfied yourself that they do. However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client's best interests.

Link to reference

[dazed]

Unless there's something else to this story that you've not mentioned, the answer should be no. If the solicitor is no longer acting for you then they should refrain from doing anything without your instructions

Thank you for your quick reply. You said "If the solicitor is no longer acting for you" rather than "if a solicitor is no-longer acting for someone".

To clarify:

1. Ex's solicitor was acting for ex in both the matter of property AND the matter of family court, but as separate cases.
2. The family court matter did not relate to finances, just the "living with" arrangements.
3. Ex's solicitor came off the record and was no longer instructed in the family court matter after August, but remains dealing with the property matter.
4: Despite being told this, mysolicitor who was acting for me at the time emailed ex's solicitor about the family matter, which he wasn't acting for at the time, and he responded with partial family court bundle.

So, yes, he is still acting for her, but not in the matter on which my solicitor emailed him.

I suppose the ex's solicitor could refer to this part of the clause:
However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client's best interests.

So would I be correct in saying that my solicitor shouldn't have asked him in the first place, and even if she had, he shouldn't have responded with info?

I know it seems like I'm bone-picking here, but there's a more serious breach which I'll carefully post about in the VIP forum later on... then you'll see why this matters

[R0b]

Sorry I mis-read.

So, if the solicitor knew that the other solicitor was no longer acting prior to making contact then strictly speaking there is a still a potential breach of the Code of Conduct. Paragraph 6.3 of the Code is about client confidentiality:

You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.

Solicitors are under a duty to keep your matters confidential and only share them on a need to know basis. If your solicitor was contacting the other solicitor and sharing information beyond what that solicitor already knows about the matter, that could be a breach of 6.3, however, I guess the other point to consider is consequences of obtaining the bundle from that solicitor - that should benefit you in some way surely?

Just because the solicitor has used the information from your ex's former solicitor does not in of itself make that wrong, rather it is a case of whether there is information that is being omitted which could be considered more substantial and helps further your position. That could possibly cross the threshold of negligence but as you are the only one who knows the circumstances surrounding these matters, that would be a judgment call for you to make as part of your complaint.

Do not be afraid to challenge your solicitor and ask why things are being omitted. Whilst they are the experts in their field, they should nevertheless be able to explain why they are taking a particular path over another.