I have observed in previous posts that the role of lawyers in court proceedings is a bit of hot spot in the current regulatory climate. See my post here.
It is therefore good that the the SRA has published a paper which seeks to provide guidance to the regulated community on risks entailed in acting in litigation. The report is here.
Most practitioners will be familiar with the following general statement in the Report:
"Although solicitors must fearlessly advance their clients' cases, they are not "hired guns" whose only duty is to their client. They also owe duties to the courts, third parties and to the public interest. Breach of those duties can give rise, for example, to wasted costs orders or to findings of misconduct."
However, as with all things ethical. Principles are great but you then have to apply them to the client sitting in front of you. For this, the Report categorises the types of situations where problems arises. These are summarised as follows:
"Many instances involve the solicitor unduly prioritising the client's interest over their other duties:
- predatory litigation against third parties, where the solicitor, in the interest of the client, uses the threat of litigation to obtain settlement, often from several opponents, on cases that have no real merit, but where the cost of settlement is less than the financial, emotional or reputational cost of fighting the claim
- abuse of the litigation process, where a solicitor uses the courts or general litigation process for purposes that are not directly connected to resolving a specific dispute, for example by incurring unmanageable costs for a commercial rival of a client
- taking unfair advantage of a third party. For example, by exploiting another party's procedural errors or lack of legal knowledge in certain circumstances
- misleading the court, where the solicitor knowingly or recklessly gives false information to the court or permits it to be given
- excessive litigation, where the solicitor fails to consider their other duties when following a client's wish to pursue aggressive and, in particular, speculative litigation.
We have also seen instances where the solicitor fails to act in their client's interest:
- predatory litigation, where clients are induced to proceed with litigation where there is little or no legal merit, or where litigation is not actually required
- taking on weak or unwinnable cases, where a solicitor accepts instructions without making the potential costs and risks clear to the client. The most harmful examples are often predatory litigation schemes, which can become widespread and affect very large numbers of individuals."
The Report sets out more details in relation to these issue, with examples, and as such is extremely helpful. The publication of Reports like this by the SRA is a welcome development in explaining what lies behind the Code of Conduct.