Seeking counsel?

What does it mean when a solicitor’s advice is to seek counsel? Does it mean that they haven’t got a clue about your case and want to pass it on to someone else to decide the likely outcome and charge an extra fortune for it (£1,000) and who is this counsel, is it another solicitor with more experience or maybe a specialist that I should have gone to in the first place or is it somebody connected with the courts? Anybody know?

Counsel is another name for a barrister - sometimes they seek a barristers advice about different matters but this is generally further into the divorce proceedings. What areas are they seeking further advice? Is your solicitor a specialist in family law? I made the big mistake of not getting a specialist in the beginning and was not happy with the way things were going - however I have now changed to a specialist family lawyer and are extremely happy with the service and advice I am getting. Most solicitors do need to contact barristers during divorce proceedings - not sure where abouts you are in these proceedings though? Hope that helps? I''m sure the wise wikis will put me right if I''m wrong! x

Barristers are the experts when it comes to advocacy and the law. Some experienced solicitors may be very good too but may advise seeking counsel with a barrister who specialises in a specific area if a case is complicated. Someone once made the analogy with GPs who treat many general complaints and consultants specialising in one particular area of medicine.

Barrister cost a fortune on top of solicitors fees. Make sure that you really need to go to Counsel before you agree with your solicitor that it is something that you want to do. Just because your solicitor has suggested it does not mean that you have to do it. Why is the solicitor not able to answer your question. If you know that you are going to need to have a barrister then you can access then directly (as opposed to through your solicitor). This saves the solicitor costs and you get the specialist advice directly. I have just left my solicitor and am going to self represent with a direct access barrister. I couldn''t afford paying the double costs of the solicitor and the barrister

Many thanks Chocoholic, Fiona and Eeyore8,

It started off, 18 months ago, as a claim for ‘non-disclosure of assets’ in our divorce in 2001. I couldn’t afford to pay the money that she was asking up front and I didn’t qualify for legal aid. So, it was kind of shelved until a few weeks ago. I found this site and started learning about divorce and all that goes with it, I contacted the courts to ask if I could have a copy of the financial order. They told me that it was never applied for but I can apply for Ancillary Relief if I want to.

So, my case changed from ‘non disclosure of assets’ to a claim for Ancillary Relief. Her advice was based on the original and when I told her that there was no Consent Order she quoted some recent case histories and made it quite clear to me that I would be wasting my money to pursue it any further and if I did then her advice and terms are as before. Maybe she was having a bad day, I don’t know but I won’t use her again. I have good reasons for this claim, I was lied to and manipulated by my ex so I’ll be contacting a specialist family lawyer for a second opinion.

There appears to be some confusion here.

There is no such claim as "non disclosure of assets". There is a route to overturn a financial order based upon non-disclosure of assets but a delay in applying to the court to overturn and order will effect how the court views the application.

If you had a financial order and found out that your ex lied about the finances, you should apply to the court without delay. However, by leaving it for 18 months it suggests that the non-disclosure is not important therefore immaterial.

You then go on to say that there was no consent order - does this mean that there was no final order or that you did get an order but this was following a final hearing i.e. the court decided rather than the parties consented?

If the court is saying you can apply for Ancillary Relief (now financial remedy), it suggests that there is no order therefore you can now apply.

I''m unsure where counsel''s opinion fits in to this. Perhaps this is in relation to the non-disclosure issue?

Solicitors are usually able to give you an opinion based upon the facts. However, where matter become complex and/or are high value, the issues become complex and the multifarious assets of the case have to be carefully drawn together to form the most advantageous case based on legal merit, legal precedent and personal circumstances, amongst other things.

A few examples of situations where professionals use third parties to carry out work:

A mechanic who contracts a body shop to do a full paint job.

A general gardener who contracts a tree surgeon to lop and remove trees.

A GP who refers a patient to a specialist.

And so it goes with a solicitor. They are able to deal with most of your legal requirements including representing you in court but they are unlikely to deal with the final hearing as this type of advocacy (involving cross-examining) is best carried out by a barrister who does this sort of work day in, day out.

Similarly a solicitor will be able to examine a set of company accounts and spot any problem areas but will not be able to prepare an actuarial report or advise on the pros and cons of company acquisition.

Instructing a barrister can be an indication of lack of competence but it could also be due to the complexity of the case or instruction of a barrister might be cheaper than the solicitor doing the job (a colleague of mine recently instructed a barrister to deal with a Children Act hearing as the agreed fee was less than my colleagues rate when travel was factored in as it was a non-local court).

Charles

Thanks Charles, Ok, I worded it wrong, the original claim was to overturn a financial order due to ‘non disclosure of assets’. Although I didn’t know what a financial order was. As far as I was concerned, I’d signed a Separation Agreement in 1996 and assumed that it was legally binding. It was this firm of solicitors, in 1996, that advised me to get proper disclosure. I was lied to by my ex about the value of our family business, she said it wasn’t worth anything and this was backed up by my son. I wasn’t in a position to argue about it, I took what was on offer and left the country. But 1 year later when it was incorporated it made £220k profit. (A friend pointed this out to me 18 months ago) This and the fact that I’d realised that I’d been manipulated into signing the SA were the reasons I contacted the same firm of solicitors. So, her advice was based on overturning a financial order due to ‘non disclosure of assets’ and she recommended seeking counsel.

It was my ex-wife that filed for divorce in 2001 because she wanted to re-marry. She was supposed to make this SA into an order at that time but didn’t. Her assets at the time must have been around £2m and mine were about £30k. The business showed a profit of £850k. I don’t think it would have been accepted by the judge as a fair split. She probably realised this too and hoped that I would never find out.

So, no financial order was applied for and the only thing between me and what she owes me is the original SA with no disclosure. So, as soon as the courts had told me that I could apply for Ancillary Relief I contacted this solicitor again. I thought that she would be pleased and wouldn’t need to seek counsel but as per my previous post, she told me I’d be wasting my money and her advice remained the same. I wonder if she''s friends with my ex...Hmmm