Family Law

Technology has transformed the way in which lawyers across the world conduct their work. This is especially the case for lawyers dealing with international cases. But what is our duty out of hours?  How much can we safely leave the office in the evening, turn off the BlackBerry, power down the laptop and chillax?

Alternatively does technology not only create greater accessibility of clients into our non-working hours, whatever those hours may be, but also give us duties of care in the importance of responding?

The New South Wales Supreme Court has recently made an order for a finding of negligence against a solicitor who failed to respond to a text and voicemail message over a weekend.

Admittedly there are particular circumstances, especially as it involves probate. The litigation took six years and the final hearing was 10 years after the event in question. Arguably expectation of responsiveness to texts, voice messages and similar has changed and increased significantly since 2003. But the principle is nevertheless true, probably more important now than practice 10 years ago and, sadly, needs to be heeded.

On a Monday, a testator who was critically ill left his hospital for an appointment to meet a lawyer with his son to make a new will of which the son would be the primary beneficiary. It was obvious the testator was ill but not so gravely ill that death was imminent. He was having treatment for cancer and apparently had a few months to live. Instructions were given for the new will to be drawn up. No material steps were taken that week.

At 9pm on the Friday evening the son sent a text to the solicitor with concerns about the father's deteriorating health and the importance of dealing with the will and a request to telephone urgently. Nothing happened. At noon on the Saturday the son left a voicemail message saying that the father's health was deteriorating and to call immediately. The solicitor received both text and voicemail but did nothing. On the Monday morning he prepared a new will in accordance with instructions and went to the hospital at 11:40 AM for it to be signed, along with the son. The solicitor was too late. The testator died at 11:20 AM.

The court found a breach of duty in ignoring the messages. There was no breach of duty in not dealing with it in the few days after the Monday meeting because there was no reason then to think death was more quickly imminent. The breach of duty was ignoring the warning communications over the weekend.

 The case is Maestrale v Aspite [2012] NSWSC 1420.

This is a particular set of circumstances. Moreover probate does involve rather final issues. Nevertheless given the service clients expect coupled with often quite high charging rates, the fact that solicitors enable their out of hours availability by including their mobile numbers on business cards, emails etc and given that family law does involve sometimes very urgent and emergency issues arising out of working hours, admittedly not as dire as in probate, then it is quite likely that such a finding as made by the New South Wales Supreme Court could be extended to family lawyers and family law crisis situations.

It is part of professional culture now to seek a better lifework balance than some of us working in the 1980s and 1990s. Yet curiously, availability through technology and client expectation of access beyond normal working hours makes it more likely now that family lawyers across the world will be expected to have a duty of care and duty of availability for clients in family law crisis situations in evenings and weekends. Technology may have freed us hugely to enable us to work much better and much more efficiently but it has equally enslaved us in other ways. Many family lawyers expect to work out of normal working hours to help our clients in a crisis. That is our choice and one of the reasons we have decided to do this work. It is a very different matter when that is imposed upon us as a professional duty of care with negligence findings if we do not respond.

I am grateful to Lucy Williams and Greg Couston, lawyers at K & L Gates of NSW for drawing attention to this case.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.