Solicitor didn''t send DP draft

I have a number of insomnia inducing issues going on at the moment, but I will single one of them out for this post.

My solicitor drafted my Petition, sent it to me for my approval. I tweaked it here and there & I sent the DP back to the solicitor. I had an email back from solicitor saying he assumed I didn''t wish him to follow the ''family law protocol'' of sending a draft of the DP to my husband, and that if I DID want the draft sent, to let my solicitor know and a draft would be sent. I didn''t think it appropriate for my stbx to have prior warning of the unreasonable behaviours I''d included, so I didn''t ask my solicitor to send the draft prior to issuing and I took my solicitor''s making of that assumption, to indicate it wasn''t a big deal anyway.

Stbx''s solicitor kicked up a big old fuss on the Acknowledgement of Service continuation stating that his client hadn''t been given the opportunity to see a draft etc. It went to to say his client denies the allegations made. There''s also a refusal to pay any of my costs based on the fact my solicitor didn''t send the draft before issuing.

I''ve googled a fair bit on this matter and it seems my solicitor SHOULD indeed have sent the draft before it was issued. To add insult to injury on a few occasions since this happened, my solicitor has stated in emails to me, that I gave strict instructions NOT to send a draft of the DP. I never gave any such instructions at all. I merely followed what I saw as guidance from the solicitor, working on the basis that he knew better than I did on these matters. I was not warned about any possible consequences of not sending the draft.

I haven''t taken up the matter with my solicitor but feel I''ve been let down and ill advised by him. On top of all this he''s a member of resolution and as such has declined to mention something I wanted stated in a letter to stbx''s solicitor so as to avoid exasperation of the case, when his NOT sending the DP draft has done exactly that AND possibly will cost me more as a result.

Did my solicitor mess up by not sending the DP draft?

Should I find a different solicitor and/or complain about this one?

I''d really appreciate someone else''s take on this situation - anyone?

I''m afraid lots of people get this wrong... It is the client that instructs the solicitor and it is the client that is in charge through instruction..! the solicitor gives advice and awaits your instruction..if your instruction is poor then they will re-advise you..but ultimately it is you who instructs them.. the solicitor awaited your instruction to send the draft..he did not get it ..L

He did not get it, as I was not informed by my solicitor of any consequences that not sending the draft prior to issuing could bring about. Are you suggesting that a layman (who doesn''t have a law degree) is supposed to know all the pitfalls of not following family law protocol? Isn''t it a solicitor''s role to direct clients who are not armed with legal knowledge? Surely that''s the whole point of having a solicitor?

Family Law Protocol is not mandatory.

In your case the marriage has broken down and the respondent is to blame. If he doesn''t agree with the allegations that is one thing but what good would redrafting the Petition do?

The allegations may help. Did you say the respondent was controlling or disrespectful? If so, giving him chance to alter the petition would have allowed more of the same behaviour.

Your position is that the contents of the petition are accurate, the respondent has caused the breakdown of the marriage and he should bear costs as a result.

Charles

Charles,
Thanks for your reply. You''re absolutely right to pick up on there being a history of abuse involved. That''s why I didn''t feel stbx was deserving of the courtesy of seeing the draft of the Petition, and if he''d wanted anything changed that would have felt like further abuse. He''s always tried to deny things and consistently refused to take any responsibility for his physically violent actions as well as the catalogue of other abuse he committed.

If he wanted anything changed in the DP I would have politely declined his request, but it would have at least meant I''d complied with this family law protocol in having sent him it first. There was a risk that in sending the draft that he might have tried to start the ball rolling before I did, thereby putting himself in the ''driving seat'' as Petitioner. Obviously I would not have wanted that to happen. At least I have a little more control over the rate things move at being the Petitioner myself.

I feel I''ve lost some confidence in my solicitor since he''s made these further references to me, saying I gave instructions NOT to send a draft when, in truth, all I did was went along with (what I deemed to be) the solicitor''s guidance on the matter. Things are difficult enough going through this nightmare, without having doubts on my solicitor''s actions.

So, to clarify on the costs. Regardless of his solicitor saying that my stbx refuses to bear any costs (based on the fact we didn''t send a draft of the DP before issue) are you saying he could still be made to pay those costs by a judge?

dvsurvivalist wrote:

That''s why I didn''t feel stbx was deserving of the courtesy of seeing the draft of the Petition, and if he''d wanted anything changed that would have felt like further abuse

Sorry I don''t see how wanting parts of the Petition changed accounts as abuse?

It will not make any difference as to costs whether your stbx was sent a draft Petition. Your solicitor has acted in your interests and on your instruction. You can ask your solicitor for advice if you do not understand the potential consequences of decisions. This is why you have them.

On another point, you mentioned they were members of resolution, an organisation which aims to reduce conflict in divorce. Sending a draft Petition is the obvious (and one of the very few) ways to reduce conflict. There is no risk involved. I cannot understand why a member of resolution would encourage you not to send one. It is against everything they stand for. My ex''s solicitor did the same and sent me a nice headed letter with the resolution logo on. It''s baffling to me.