In her second article on the legal questions prompted by the recent TV series THE SPLIT Jayne Martins, a Partner in our family team, examines the obligations on a lawyer when she knows more about the facts of the matter than her client.
Spill the beans or keep her counsel?
In this second instalment on my observations of Series 3 of The Split, I take a look at the plausibility of one of the key subplots which involved a single-sex married couple, Bella and Sian, and their friend Gus. The three of them meet with the show's protagonist Hannah Stern, a partner at the fictional firm Noble Hale Defoe, to arrange a parental agreement as Bella and Sian are having a baby with the assistance of Gus's sperm donation. The law in England and Wales says that where a couple are married and conception occurs via artificial insemination (as was understood to be the case), the donor (ie Gus) would have no legal rights at all as a parent. So in real life the meeting was superfluous as the agreement was unnecessary.
Without the meeting, intuitive Hannah (and viewers) would never have spotted the nervous smiles between Bella and Gus which soon gave the game away that the insemination had been less artificial and more of the natural kind. Hannah then faced a dilemma; she could not advise Bella and Sian to sign the document as she knew the information to be false but she also knew that if the truth was revealed, it might end her clients' marriage. In reality, Hannah would have had to advise her clients that she could not assist them any further as Hannah has a duty not to mislead the court so she cannot have any involvement in finalising a document she knows to contain false information. A reputable family lawyer would have recommended that Gus get his own legal advice as he would be considered the legal parent of the child and have various responsibilities towards the child that he may not have anticipated (including paying child maintenance). Instead, Hannah advised Gus and Bella to come clean and disastrous consequences inevitably ensued.
While Series 3 of The Split did contain some other far-fetched legal scenarios, it was somewhat of a relief that the final season focused much more heavily on the personal lives of the main characters (mostly the separation and divorce of Hannah Stern and her husband which was covered in my first instalment) and much less on the work of the family lawyers at Noble Hale Defoe. As a family lawyer myself this allowed me to enjoy the show as opposed to wanting to throw certain objects at my TV as was the case in the previous two seasons where glaring legal discrepancies occurred in almost every episode!
This article was originally published in Edward Fennell's Legal Diary.
Published on 7 June, 2022
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