Keep calm and carry on: when a solicitor wants to attend a meeting

It has become increasingly apparent to me since I moved out of local authority that my presence is considered somehow intimidating. Quite why professionals find little, smiley 5’1″ me so scary is not entirely clear (especially as I am fully power-dressed right now in a Lion King hoodie and jeans), but it has riled me up. And when I get riled, I write a blog post. It is who I am now!

Let me begin by saying that I know that for individual social workers, the idea of going to a meeting with a service user and their solicitor can cause an instant fear reaction. Lawyers have a reputation for being somewhat bullish and aggressive. It is easy to imagine that they are going to cross-examine you, trying to trip you up or get you to agree to something you shouldn’t. But the thing is, we’re not like that

Well some of us are like that, actually, but most of us aren’t.

And there are plenty of perfectly valid reasons why a service user might want their lawyer to attend meetings with them. They might, for example, have difficulty remembering and relaying the topics of discussion to their lawyer. Minutes can be shared, but often by the time these have been typed and approved, the situation will have moved on. This means that the lawyer can’t give very clear advice, so their attendance makes sense.

Sometimes the relationship between professionals and the service user might be strained to the point that they no longer trust the professionals not to take advantage of their lack of understanding of the legal processes involved. Yes, mistrust can go both ways! And if having a lawyer there makes them safer and more likely to be listened to, well what is wrong with that?

There are rare occasions where a service user or their family might be trying to bring their lawyer as some kind of bullying tactic. It’s unlikely that will be an effective strategy though, because most lawyers in the field are legal aid funded, and so their behaviour will be scrutinised and if they are attending meetings without good reason or being overly adversarial, its possible their bill won’t get paid in full. But more importantly, bullying tactics in this area of law work so rarely that most experienced lawyers won’t agree to take that approach. We can spot a ‘dabbler’ by the tone of their correspondence most of the time.

Besides, trying to bully a local authority is a bit like trying to reason with a cat. They are experts in bureaucracy and misdirection. Go in too hard and any public authority will most likely pull up the drawbridge and make it impossible to get enough information to establish a clear claim against them, and then just engage in a game of “chicken” with the offending lawyer: try it, I dare ya. Let’s see who runs out of money and motivation first, ey?

I’ve seen that particular game played more than once. It’s frustrating, but often highly effective. The downside, of course, is that if the offending lawyer calls the bluff, there’s a real risk of a substantial costs claim coming the authority’s way!

Anyway, when I worked in house and a social worker would ring me up in a panic, asking how they could stop the solic1itor coming my advice would be “you don’t”.

Instead, what I would suggest as that we meet beforehand and discuss the case, often with their manager too. We’d identify the things the solicitor would likely want to know and try to make sure we had that information. And I’d explain to the social worker that it is totally fine to say “I’ll have to find that out” or “that isn’t my decision” if asked a question they don’t know the answer to or can’t answer right now

Often I would agree to attend with them, as a bit of a security blanket, just in case the other solicitor tried any sneaky tricks. If the social worker was really nervous, we’d agree some kind of signal they could give me if they were floundering and needed me to step in. I hardly ever needed to though.

Adult social care law is a small world, so us lawyers tend to all know each other in passing. Which means if anyone gets a reputation for being overly aggressive, most other lawyers will soon know who they are. And if lawyers are fair and reasonable to work with, then we all know who those lawyers are too. So even if a lawyer was tempted to try to give a social worker an unduly hard time, knowing that another lawyer is there to call them out on it usually curbs that instinct. We tend to settle on very passive aggressive “with all due respect” and “I’m sorry, could you clarify what you mean by that” remarks instead.

As an in-house lawyer, I could have saved myself some time and effort if I’d advised the social worker to not proceed with the meeting if the service user’s solicitor was in attendance. The social workers would certainly prefer that. So why didn’t I?

Quite simply, it’s because there is no legal basis for doing so. If the service user wants the solicitor there, and consents to information being shared with the solicitor, then there is absolutely nothing that says they can’t be there. Since moving into private practice I’ve had a few excuses given. “It’s not usual” being the most common, as if that is supposed to mean something! “We’ll need to check our information sharing policy” is another, but as I have said, if the client consents to information sharing, then data protection won’t help. Even if they can’t consent due to lack of capacity, it will generally be in the person’s best interests to be supported to access full legal representation and if the solicitor is funded to attend, the Mental Capacity Act is unlikely to assist either.

The one that got me wound up recently was “professionals don’t feel that they can speak freely if the lawyers are there”. This was tempered with a “we’ll send you the minutes when they are typed up though”, as if that would be sufficient to appease this terribly intimidating lawyer. But the thing is that this simply doesn’t make any sense. If professionals think there are things that they can’t say in front of a lawyer then that suggests that thing is probably a pretty stupid thing to say that they should just keep to themselves anyway. And if the silly thing is going to be said, but then softened or filtered out in the minutes, then that suggests the minutes are not going to be very accurate. So that makes me want to go to the meeting more, so that I can be sure I get the full account of what was said in the meeting.

For me, and for a lot of lawyers I know in the field, trying to stop us attending a meeting is a red rag to a bull. It is exactly the kind of thing that will make an otherwise fairly mild-mannered lawyer want to give professionals a bit of a hard time. After all, a lack of transparency only helps people who have something to hide. A professional who is doing their job properly has very little to fear from the presence of a solicitor in a meeting. Withholding information from a lawyer, however, will likely prompt that lawyer to actively go looking for a problem, because if there wasn’t an issue, why would you have withheld the information?

We aren’t stupid, we know you don’t want us there. But sometimes a little discomfort is a small price to pay. After all, most service users are uncomfortable at having to get a solicitor involved and would rather there wasn’t an issue. Many of the clients I have come across are uncomfortable meeting with professionals, especially on mass. So it’s only fair, really, that the professionals endure a small amount of discomfort too, in the interests of reaching a satisfactory outcome.

Service users and their families shouldn’t, therefore, be scared to invite their lawyers to meetings. It is good practice to give professionals advance notice though, and you might find the meeting gets postponed if a lawyer shows up without warning. I’m certainly not going to jump out and yell “surprise” at any professionals.

And if professionals have a nice supportive in-house legal team, it should be easy for something to be set up that puts professionals at ease, without interfering with a service user’s ability to get legal advice.

Besides, lawyers really aren’t the monsters people think we are. Most of us anyway

In case it isn’t obvious from the fact I still haven’t identified the authority I worked for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation

Leave a Reply

%d bloggers like this: