A Light-hearted Reminder of the Core Duties, Professional Obligations and Ethical Concerns that Daily Occur in FR Work

This article explores the various ethical considerations which any family finance practitioner should bear in mind within their daily practice. The following scenario is envisioned to amplify the potential challenges we face and how they intertwine with the Regulatory Code of Conduct underpinning our profession.

Below, Larry Suitman and Anita Defence navigate an almost typical family finance case with numerous code-of-conduct challenges thrown their way. Can you spot the challenges? What would you have done?

Where it all began

Mr Larry Suitman, a junior in chambers, is instructed by YourTopLawyers to represent an applicant husband, Mr Graham Horton, at an FDR. The respondent husband is Mr James Horton, who is a litigant in person. Upon receiving details about the case from his clerks, Larry returns the case. Larry tells his clerks he objects to same-sex relationships and will not represent anyone in a same-sex relationship. As a result, Larry’s clerks manage to return the matter to another member of Chambers, Ms Anita Defence.

It will be of no surprise to those reading this article that Larry’s refusal to represent Graham at the FDR because of his sexuality is a breach of Core Duty (CD) 8, namely that you must not discriminate unlawfully against any person. Under s 4 Equality Act 2010, sexuality remains a protected characteristic. Furthermore, by declining the instruction, Larry has acted in such a way as to breach CD5; he has acted in a manner that would diminish the trust and confidence the public places in him and the profession.

Of key importance is the Cab Rank rule (rC29) with which all practitioners will be familiar. Larry, therefore, ought to have accepted the instruction unless any of the exceptions and scenarios contained at rC21 or gC89 applied. Some examples of the same are as follows: (1) if there is a real risk of conflict; (2) you lack the requisite experience; (3) you are unauthorised to perform the piece of work; and (4) the instruction would involve you undertaking foreign work (if unqualified to do so).

In advance of the FDR, YourTopLawyers contacted the clerks to request that Anita attend court earlier than usual to meet with Graham. YourTopLawyers explained to the clerks and put in the instructions that, owing to the client’s cognitive difficulties, he is registered as learning disabled, so extra time was required to ensure his understanding of key concepts. Anita instructed her clerks to increase her (not yet agreed) brief fee to account for the extra time she was required to be at court.

By increasing her brief fee to account for the extra time, Anita is at risk of discriminating against Graham in breach of CD8. Though her fees may have been agreed on an hourly basis as opposed to a flat rate brief fee, it would have been better to specifically agree a brief fee prior to Anita becoming aware of Graham’s disability to avoid any accusation that she has breached her ethical obligations.

Anita is in court the day prior to the FDR, and due to issues in that case, the time she had set aside to prepare for the FDR was lost. Anita speeds up her time-limited preparation by getting a specialist legal artificial intelligence (AI) product to ‘read’ the papers and analyse both the facts and asset schedule in the case. Anita also undertakes legal research with the specialist legal AI product. Anita uses the AI-generated material to prepare her position statement. Anita then uploads a redacted copy of her position statement onto the AI platform and asks the AI to make it more concise and produce a draft final order. The AI includes a hallucinated case citation and also gets the maths wrong, so it splits the former matrimonial home’s (FMH’s) net proceeds of sale (NPS) 40:50, short-changing Graham. This error is included in the draft final order, where 10% of the FMH NPS is unaccounted for.

The prevalence and reliance on AI/large language models (LLMs), coupled with the ever-evolving legal and regulatory framework that governs them, can cause pitfalls for practitioners. In our example, Anita should remain alert to her obligations under CD2 and CD6, as well as her broader obligations under the General Data Protection Regulation. It is important for practitioners to take care when selecting an LLM platform with a view to this assisting with preparatory case work. Amongst concerns regarding security, and LLM access to uploaded data for ‘learning’, as data controllers, practitioners need to bear in mind data retention. Anita should ensure she is aware of how long the LLM will retain the information she has input, and how that fits in with her data retention policy. Anita should also specifically include the use of specialist AI/LLMs in her privacy notice. CD10 requires barristers to take reasonable steps to manage their practice to ensure compliance with their legal and regulatory obligations, and rC87 demands that reasonable steps are taken to ensure proper records of your practice are kept. This rule includes considering how long records are kept for. The Bar Council’s Information Technology Panel[[1]] provides further explanation about the use of LLMs, including concerns about the waiving of privilege by uploading privileged documents to an LLM.

Another obvious misstep by Anita is her failure to check the numbers deduced by the LLM regarding the distribution of the FMH NPS. Again, by not checking the information output, Anita has neglected her duty to her client and, arguably, allowed her discretion to be fettered by outsourcing her work to the LLM. It remains to be confirmed whether deferring to AI would constitute outsourcing for the purposes of rC86, though, if it were, reliance on LLMs would not alter your obligations to your client, and the platform itself should be compliant with: (1) confidentiality rules; (2) your own obligations contained within the Code of Conduct; (3) data processing rules in accordance with your instructions; (4) permitting the Bar Standards Board (BSB) to inspect records; and (5) processing personal data in accordance with agreed arrangements.

A cautionary tale can be deduced from the case of R (Ayinde) v The London Borough of Haringey [2025] EWHC 1040 (Admin), whereby counsel submitted pleadings containing five fabricated legal citations. This was considered by the court to be improper, unreasonable and negligent conduct. As such, in relying on the false authority generated by the LLM, Anita has defied most – if not all – of her core duties.

To ensure compliance with CD10 and the associated Bar Council Information Technology Panel guidance[[2]] regarding the use of LLMs, barristers are to verify the results derived from the software and maintain procedures for checking its generative outputs. Equally, robust cybersecurity measures must be implemented, particularly as, in the event of any cybersecurity attack, accountability lies with the barrister. It is unclear whether Anita has such safeguards in place, but it would be sensible for her to review her cybersecurity measures annually to ensure compliance with CD10.

At court

When Anita arrives at court, she introduces herself to James Horton, who informs her that he is not legally represented. Anita reassures James that this will not be an issue and that she is there to help. Anita then tells James that the court is not going to be convinced by his position, as this is plainly a case which justifies a needs-based departure from equality, so he may as well just accept Graham’s offer now.

Immediately, CD5 is engaged. The BSB has helpfully given specific guidance that legal jargon should be avoided when speaking with litigants in person. In addition, rather than saying ‘the court won’t be convinced’, Anita should have used language such as ‘are you prepared to agree’.[[3]] Anita’s interaction with James is not the right approach and undoubtedly diminishes trust and confidence.

James hands Anita his position statement, which reads as if it were written by open-source AI. When Anita queries this, James confirms he used ChatGPT after he had uploaded all the case papers.

There is no guidance from the BSB on what to do when an opposing party uses ChatGPT. In Norman v Norman [2025] EWFC 107 (B), District Judge Veal warned that using public forums such as ‘Just Answer’ to publish or communicate information relating to the proceedings risks breaching FPR 9.46 if jigsaw identification is possible, and a ‘healthy dose of caution’ should be exercised when ‘communicating about issues being considered in family proceedings in any other public forum’. Whilst ChatGPT is not a public forum, its use still raises issues of confidentiality. CD1 would be engaged if James’s use of ChatGPT involved disclosing confidential information in a way that risked public identification. All the same concerns addressed above about the use of LLMs would apply to ChatGPT.

Anita then goes to speak with her client, Graham. Graham becomes irritated that Anita ‘keeps helping James’ when James had asked for clarification in the waiting area. Graham is concerned that Anita is not on his side. Anita responds, telling Graham not to worry as she is helping him too.

CD7 is engaged, which requires Anita to provide a competent standard of work, and CD2, which requires Anita to act in Graham’s best interests. Given Graham’s expectations that Anita is acting solely in his interests, she should not have suggested she was helping both parties. Instead, Anita should have explained that the help being given to James is limited to procedural assistance only, and that her duty to the court (CD1), coupled with the interests of fairness, requires her to do so.[[4]]

During their conference, Graham informs Anita that he has not disclosed one of his pensions (the largest) because he doesn’t think his ex-husband ‘deserves a penny’. He informs Anita that it is an NHS pension of over £100,000, but there is no way he wants his ex-husband to be made aware of this. He gives Anita a copy of the cash equivalent value (CEV) letter dated the same month as the FDR. Anita advises that this document must be disclosed. She takes the document and goes to give it to James, despite Graham specifically telling Anita she cannot give the CEV letter to James.

Once Graham refuses to authorise disclosure, Anita must not go behind that express instruction. CD2 is engaged and whilst Anita is permitted to robustly advise Graham as to his disclosure obligations, as per rC25.2 where Graham has expressly instructed her not to disclose the CEV, rather than go behind that express instruction and disclose Graham’s confidential information in breach of CD6 and CD3, Anita should withdraw as she cannot continue to represent the client knowing they are in breach of their duty to make full and frank disclosure (given this would breach CD1 by misleading the court and CD4 as Anita would be replacing her own independent decision-making with Graham’s refusal to comply with his disclosure obligations).[[5]] It is important for Anita to recognise that CD2 is constrained by CD1, CD3 and CD4.

When discussing James’ limited company, Graham tells Anita that he snooped around James’ office prior to their separation. He tells Anita that he logged onto James’ computer and obtained a copy of James’ company’s customer database. Graham says that he thought the database might be helpful evidence that James is operating a thriving business. Graham hands Anita a USB stick, which he says includes all this information, and tells her to give it to the judge.

CD2 is engaged, and Anita must advise Graham of the serious consequences of obtaining information in this way. This is similar to the case of Imerman v Tchenguiz [2010] EWCA Civ 908. Importantly, the fact that the documents have been obtained in this way should be disclosed, and the USB should be returned to James. Anita should not view what is on the USB stick herself, and if Graham refuses to return it to James, Anita may need to cease acting.[[6]]

While taking instructions at court, Graham’s instructions are that James’ business is worth over £1,000,000 and the family home is worth over £750,000. James’s company was started during the marriage. The company arose from an idea Graham had, and Graham did the initial set-up of the business. Graham is a 49% shareholder but not a director. Anita’s Bar Mutual Indemnity Fund (BMIF) insurance provides only the lowest coverage, up to £500,000.

The mismatch between the assets in the case and Anita’s insurance engages CD10 (proper management of practice) and CD7 (competence). rC76 makes clear that Anita should make sure she has adequate BMIF insurance, which is particularly important in financial remedies. By not considering whether higher cover is necessary, Anita exposes herself and Graham to risks exceeding her insurance limits.

Following the hearing

After the hearing, Anita marked the occasion by posing for a selfie outside Walsall County Court and drafted a LinkedIn post setting out which court she was at and some brief facts of the case, including the parties’ first names. Anita plans to ask the clerks to email all the family finance solicitors in the chambers database, outlining how she won and linking to her LinkedIn post.

With the explosion of the new ‘legal influencer’, it is of no surprise that Anita is utilising LinkedIn and Instagram as a way of exerting a not-so-humble ‘humblebrag’ about her win in court. However, barristers using social media must be careful not to breach CD2 (to keep client affairs confidential) and should familiarise themselves with the BSB guidance on social media. Anita, by identifying her client and the court in a situation where the proceedings are private and have not been published through official channels, would inevitably breach her ethical duties.

On her personal (yet public) Instagram account of >5,000 followers, Anita posts that she has today acted in a case featuring two men and expresses her personal dislike of same-sex marriage. Anita’s Instagram bio states that she is a barrister but does not specify her chambers. Her profile picture shows her in her wig and gown outside her chambers; the logo is visible along with all the names on the board.

Whilst barristers have a right to freedom of speech, they must also not act in a way which diminishes public trust and confidence in the profession (CD5), or which discriminates against others (CD8). Anita, by posting on her Instagram account, which has >5,000 followers (wow, jealous!), that she acted in a case with a same-sex couple, but does not like same-sex marriage, is clear discrimination in breach of her duties (see paragraph 18 of the Bar Council’s social media guidance).

Anita also links her views to her profession by: (1) relating them to a case she has acted in, involving a same-sex couple; and (2) having her profile picture showing her in a wig and gown outside chambers – identifying herself as a barrister and her chambers. Anita may find herself in trouble with the equality and diversity lead in chambers, or she may face disciplinary proceedings before the BSB. There are a number of recent cases in which barristers have been struck off, or suspended, as a result of comments made on social media – so barristers beware!

Anita sent her attendance note after the hearing, which included the fact that Graham had told Anita that he had asked his solicitor to make an offer prior to the FDR, but his solicitor had refused. Anita’s instructing solicitor contacted her after reviewing her attendance note. The instructing solicitor asked Anita to amend her attendance note to remove the reference to their refusal to make an offer, as it was not true. The solicitor was concerned that Graham may use it to make a complaint against her; Anita removes this part of her note and re-sends it.

We have all had cases where they have not been prepared as well as they should have, or mistakes have been made. We may be lawyers, but we are still human (sometimes …)! However, Anita has an ethical duty to maintain her independence (CD4) and act with honesty and integrity (CD4). Maintaining independence includes being free from the influence of her instructing solicitor. Her duty is to her client (CD2) and the court (CD1); therefore, she should not remove the reference made by her client about her solicitor’s potential failure to make an offer prior to the FDR. To act otherwise may result in her facing disciplinary action.

[[1]]: Bar Council Information Technology Panel, ‘Considerations when using ChatGPT and generative artificial intelligence software based on large language models’ (Bar Council, January 2024), www.barcouncilethics.co.uk/wp-content/uploads/2024/01/Considerations-when-using-ChatGPT-and-generative-artificial-intelligence-Nov-2025.pdf

[[2]]: Bar Council Information Technology Panel, ‘Considerations when using ChatGPT and generative artificial intelligence software based on large language models’ (Bar Council, January 2024), www.barcouncilethics.co.uk/wp-content/uploads/2024/01/Considerations-when-using-ChatGPT-and-generative-artificial-intelligence-Nov-2025.pdf

[[3]]: Bar Council Ethics Committee, ‘Litigants in Person: Guidelines for Lawyers’ (Bar Council, June 2015), paras 38–40, www.barcouncilethics.co.uk/documents/litigants-person-guidelines-lawyers/

[[4]]: Bar Council Ethics Committee, ‘Litigants in Person: Guidelines for Lawyers’ (Bar Council, 2015), paras 35–36, www.barcouncilethics.co.uk/documents/litigants-person-guidelines-lawyers/

[[5]]: Bar Council Ethics Committee, ‘Disclosure of Unhelpful Material in Family Proceedings (Finance)’ (Bar Council, March 2024), paras 18–20, www.barcouncilethics.co.uk/wp-content/uploads/2017/10/Disclosure-of-Unhelpful-Material-in-Family-Proceedings-Finance-March-2024.pdf

[[6]]: Bar Council, ‘Evidence obtained illegally in civil and family proceedings’ (Bar Council, January 2014), paras 23–31, www.barcouncilethics.co.uk/wp-content/uploads/2017/10/Evidence-obtained-illegally-in-civil-and-family-proceedings-April-2025.pdf