By Demelza Patricio
Finally, a television series devoted to the fast-paced, high-stakes world of divorce law in London. BBC’s ‘The Split’ is the glossy new legal drama much anticipated by family lawyers eager to see how our profession would be portrayed. The verdict? An emotionally-charged plot with hints of plenty of twists ahead but, from a legal perspective, overwhelmingly removed from reality!
Family solicitors are accustomed to emotionally raw clients, soap-opera storylines and tales of deceit, hurt, anger and revenge. What we are not so used to (thankfully) are the sort of ethical breaches scattered throughout Tuesday’s first episode. It is, of course, drama and in the TV legal world there is no ‘professional code of conduct’ to spoil a good plotline, much to the dismay of real life family lawyers.
The first episode introduces lead character Hannah Stern who has recently left her mother’s firm Defoe’s to join rivals Noble & Hale. Hannah is referred to by her senior partner as having the reputation of ‘a lawyer who likes to settle’ (which should be an accolade) but since ‘litigation makes money’ means that Hannah must learn to take matters to court. This was the first slur on the (good) name of family solicitors, most of whom, happily, do not share this approach.
As family lawyers, our priority is to ease the process for our clients rather than aggravating it with expensive and stressful litigation. We are there to solve problems and find solutions. In most cases, this can be achieved out of court with an agreed settlement. Inevitably some matters do go to court, but this is seen as a last resort rather than a starting point. Of course, amicably-negotiated settlements might not have made for such exciting television.
In episode one we see sportswear mogul Davey McKenzie break the news to his wife of their imminent divorce – with his lawyers present. Cue family solicitors squirming uncomfortably as Hannah takes her client’s soon-to-be ex-wife Goldie McKenzie aside to give her some tips - a professional no-no completely at odds with the duty to act in your client’s best interests.
Davey McKenzie is soon poached by Hannah’s mother and becomes a client of Defoe’s. We then shrunk from our screens as Hannah takes on Goldie McKenzie as a client, in spite of the massive elephant in the room for lawyers; Hannah has already spoken privately to her husband giving rise to a conflict of interest.
Then there is the scene in which Goldie McKenzie is seen attempting to hack her husband’s password-protected computer and access bank statements in his safe, which she proceeds to share with her lawyer. In reality, there very are strict rules about how documents can be obtained and used within proceedings. Indeed, to go searching for your spouse’s confidential documents can amount to a criminal offence. So if you are in any doubt as to whether your spouse would share a document with you, do not go there. The chances are your solicitor will not be able to look at it anyway.
We also meet another of Hannah’s client’s, Sarah Pope, divorcing her husband Rex, a stand-up comedian represented by Hannah’s sister, Nina Defoe, who has remained loyal to their mother’s firm. Whilst it is possible for siblings to represent opposing clients, the parties would need to be told and to give their consent. The close relationship could jeopardise their lawyers’ ability to act dispassionately in their client’s best interests – as became evident in their round table meeting.
We quickly learn that Rex has been prevented from seeing their son because Sarah has some concerns about his latest tour titled ‘My Ex-Wife’s a Bitch’. Family lawyers winced as Hannah uses Rex’s “visitation rights” (an American term) as a bargaining chip in negotiations – an unprofessional move which wholly overlooks that the child’s welfare must be Hannah’s paramount consideration. Then another serious conflict breach occurs when Hannah speaks directly to Rex without his lawyer present. No lawyer is permitted to speak directly to the other party if that party has legal representation.
While often unrealistic, 'The Split' does provide a platform for further discussion of family law issues and demonstrates how emotionally draining and difficult the divorce process can be. As family lawyers, our role is to help our clients navigate the emotional minefield, provide expert legal advice, and guide clients through the most appropriate process. Hannah’s advice to Goldie McKenzie is valuable – find a lawyer you trust to deal with your matter as if it were their own.
We wait to see what trials and tribulations the next instalment of The Split brings on Tuesday 1 May at 9.00 pm.