How can and should this tempting information be treated? The concept of “self-help” is fraught with problems and can raise some real ethical difficulties for the solicitor.

Firstly, both spouses will have doubtless been advised that no case can settle without financial disclosure having taken place and therefore there should be in the course of the case, an exchange of the financial information that should occur anyway. This might reveal the items that the client has already discovered under their own “investigations”.

Solicitors should advise a client to primarily consider what consequences may arise as a result of self help and the other party becoming aware that your client has been “snooping”:

- it should not, but it might encourage reciprocal action by the other party and potentially vindictive correspondence from the other party or their solicitors;
- the result of this may increase costs for the client;
- clearly such an unpleasant situation may have an effect on any children of the family;
- potentially, if court proceedings are taken, the client may be on the receiving end of an order for costs
- Negotiated settlement is much less likely.

When can self help be justified?

There can be some occasions when self help can be justified. However, the burden of justification is upon client who is taking the action, and the more serious the action, the heavier the burden.

If a spouse gives an account of the other party that they have been financially dishonest which might lead to a conclusion that they are not likely to give a full account of their assets within the divorce proceedings, it is permissible to advise a client to take copies of such documents that can be obtained without the use of force.

What action can be justified?

Provided no force is used by a spouse to obtain copies of documents, they could be used in the proceedings. So, for example, levering open a brief case or breaking into a safe is not allowed.

What should be done with the documents?

If documents have been obtained through self help, they must be returned to the other party who should be notified that the documents have been copied. However, both parties would normally complete and file a Form E. The self help documents can be withheld until after disclosure on Forms E has taken place however, severe criticism will be levelled at the spouse who waits until very late in the proceedings to reveal that they have documents in their possession.

Any documents acquired through self must be disclosed to the other party and the originals returned to their solicitor. Clients must be aware that they might have to explain how they came about the documents in the first place.

Don’t forget that the Court has considerable powers to search for and obtain documents and therefore documents obtained by self help may not be needed.

What about the letter from my spouse’s solicitor?

This document is privileged. The solicitor must tell the client that they cannot and do not want to read or know about what is in the letter. The client must be advised not to read it and replace or destroy it (if it was a copy) or send it on to the other party’s solicitors unread. If the solicitor becomes aware of the contents of the letter or document they are conflicted with their own client and cannot continue to act.

If the documents obtained are privileged, the other party may be entitled to an injunction to return the documents and also to prevent the documents, or the information within them, being used in the proceedings. If that is the case, the client should be warned that not only do they risk costs orders being made but also may well lose credibility before the Court.

If a solicitor receives privileged information from his client this must be returned unread immediately. The client must be told to forward the information to other party’s solicitor and must disclose to that solicitor that they have read the privileged documents.

A conflict between a solicitor and his client will arise when the solicitor reads documents and the client does not know the contents. It does not arise if the client read the contents but the solicitor does not.

As eluded to, this is a complex and difficult area that I have only touched upon here. If you require any more information please contact Rachel Spencer Robb dierct on 0113 336 3340..

Rachel is an Associate Solicitor in the Family Team which forms part of the Private Client Department at Clarion Solicitors.

Rachel deals with high net worth ancillary relief (financial issues following marriage breakdown), cohabitation issues including separation agreements, civil partnerships, all Children Act issues and domestic violence.   She is been a member of the Solicitor's Regulation Authority Family Law Panel for 5 years and is a Accredited Specialist member of Resolution (formerly Solicitors Family Law Association) as well as being a committee member.  Rachel is a regular blogger on the Clarion Solicitors LLP website and has appeared on Radio Leeds.