For once, Heather Mills has a point
Alasdair Palmer says that the McCartney divorce case, like so many others, was a victory for the lawyers. Even pre-nuptial agreements wouldn’t thwart the legal profession’s avarice One of the most revealing transcripts I’ve read was of a conversation between a professional criminal and a police officer he was trying to corrupt. ‘Lawyers?’ exclaimed the outraged villain at one point in the conversation. ‘They’re criminals! I mean, I went to mine the other day, he offered me a cup of coffee and half a biscuit, and when I got the bill, it had an entry: coffee and biscuits — £12.50. £12.50 for a cup of coffee and half a biscuit! That’s ridiculous. It’s criminal. It’s theft!’ A lot of people who aren’t professional criminals react in the same way when they see a bill from their lawyer. Art Buchwald, the humourist who successfully sued Paramount over an idea of his which they had stolen and made into an Eddie Murphy movie, used to say he had a sense of humour about everything — until he got the first bill from his lawyers. It ran to thousands of dollars — and that was only the charges for ‘photocopying’. When the bill for the legal advice came, he started to laugh once again: he said it was the only thing he could do.
Lawyers have had a bad reputation for gouging money out of clients since at least the 17th century, when they were known as ‘gowned vultures’ and ‘the worms of the kingdom’. That reputation seems to be confirmed whenever you open a newspaper. Last week, Heather Mills McCartney was spectacularly rude about Fiona Shackleton, Sir Paul McCartney’s lawyer, saying Ms Shackleton was the cause of the problems there were in agreeing a settlement in her divorce from Sir Paul. She claims that Ms Shackleton is ‘a nasty woman’ who said unrepeatable things about her when she was in a wheelchair. Heather Mills wasn’t rude about Anthony Julius, her own advocate — but that may only be because she hasn’t received any of his bills yet.
If you’re involved in litigation, you quickly discover that you can’t have a friendly conversation with a lawyer. When you say ‘Good morning, how are you?’, you pay for the privilege. The clock is always ticking, and your new-found friend is expected by his or her firm to bill for every three and a half minutes (‘or portion thereof’) they spend talking to you. Or thinking about your case. Lawyers have been known to charge clients for the minutes in the shower they spend cogitating legal matters.
In some ways, of course, you can’t blame lawyers for doing what everyone else does, which is to ensure they get paid the maximum the market will bear for their services. Lawyers, in common with nearly all providers of personal services, have seen the amount they can charge for their work increase enormously in the last few decades, especially compared to the price of manufactured goods. There is a straightforward explanation for this fact: services, for the most part, cannot be automated or standardised, and cannot be made more efficient by technology. So while manufactured items such as cars or computers or phones fall in price, the price of lawyers (and car mechanics and computer repairmen) goes on increasing at rates way ahead of inflation.
Lawyers’ fees might generate slightly less resentment if charging you as much as possible was what they freely admitted to doing. It is the unlovely combination of greed and moral self-righteousness which gets so many people’s backs up — the implicit, and sometimes explicit, suggestion from your solicitor or counsel that they are genuinely concerned about your good, not just about your money.
I am sure Fiona Shackleton is rich and successful enough not to have to be professionally concerned about anyone other than very wealthy litigants. But everyone I know who has been through a divorce has emerged convinced that they were deliberately and unnecessarily persecuted by the other side’s lawyer. They also all feel that they were cheated by their own.
Would pre-nuptial agreements make the situation any easier? Might they at least dispense with the need for lawyers? Pre-nups are not currently recognised in English law, and no judge sitting in an English court and deciding on how assets should be split in a divorce case has any obligation to follow one. They used to be common, however. In the 17th and 18th centuries, married women were ‘subsumed’ under their husband’s legal personality. They could not enter into contracts or own property, and almost everything they possessed was entirely at the disposal of their husbands. To escape the very real possibility that their husband would arbitrarily deprive them of everything, women frequently made pre-nuptial contracts with the men they proposed to marry. The idea was to ensure that, in the event of widowhood or separation, they had something to live on.
Pre-nups, or ‘marriage settlements’ as they were then termed, were upheld by the courts. They were criticised (in many places, including Addison and Steele’s Spectator) for being ‘unromantic’. Perhaps they were. But they were also a very sensible precaution, because they certainly saved many of the women who insisted on them from penury. Pre-nups died out in the later 19th century, when court procedures were consolidated and a series of law reforms enshrined married women’s rights to their own property in statute. If pre-nups make a comeback today, it will be rich men, not poor women, who will be responsible for their revival.
Possibly in an effort to make up for the blatant injustices of the past, today’s courts treat women very fairly in divorce cases — indeed, too fairly for a lot of very wealthy men. When rich men marry younger women and find they are faced with a demand for a divorce after three or four years, they invariably bitterly resent having to cede 50 per cent of their assets to their former partners. They cannot understand how a woman they have been married to for such a short period can suddenly have a right to half of their millions. ‘What did I do to deserve half of my husband’s wealth?’ one American woman who successfully divorced a rich Hollywood producer is reputed to have said. ‘I f***ed him for two years. That was hard work, believe me.’ Fair or not, a 50–50 split is the legally required starting point for settlements. Diversions from it have to be justified which is where lawyers come in. Sir Paul has hired Ms Shackleton to protect his millions from Heather Mills. Heather Mills has hired Mr Julius to ensure she gets her hands on as many of his millions as possible.
The experience from other countries which have binding pre-nuptial agreements, such as the United States, does not suggest that they lead to a diminution in the use of lawyers. Where there are contracts there are loopholes, and where there are loopholes there are lawyers to exploit them. If you are rich enough to consider a pre-nup, your ex-spouse will be rich enough to fund (probably from your assets) a lawyer who can prove that it ought not to be upheld. So you can be sure of one thing: the arrival of legally binding prenups will not herald the end of the £12.50 cup of coffee.
Alasdair Palmer is public policy editor of the Sunday Telegraph.
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