Balancing your duties as a solicitor can sometimes be tricky. Michelle Garlick reviews the key risks that you need to be aware of, in order to avoid regulatory issues.
In my last article on avoiding complaints and what good client care looks like, I discussed issues that might lead to a poor-service finding by the Legal Ombudsman or, at worst, a negligence claim, but there are some situations in litigation which can end up on the Solicitor Regulation Authority’s (SRA) desk as a matter of misconduct.
The SRA’s Risk Outlook issued in July 2018 offers some guidance on standards of service, managing claims, and integrity and ethics – all of which are very relevant to litigators.
Standards of service
The SRA makes it clear that high standards are expected of all solicitors and it is essential that solicitors maintain their competency, keeping it up to date and relevant. The SRA has highlighted advocacy and criminal litigation as high-risk activities where poor service standards can lead to severe harm, particularly as many of the clients will be vulnerable.
Similarly, immigration (where many clients are, again, vulnerable) is also a high-risk area for poor standards of service, such as:
- not releasing files or papers in immigration or asylum work, where legal documents / passports are of huge value to clients
- not communicating properly or giving inadequate costs advice
- abusing the court process – for instance, running arguments which have no merit in an attempt to delay the inevitable.
Managing claims is a priority risk. This is a result of the way in which a few firms, mainly specialising in personal injury, have dealt with holiday sickness and payment protection insurance claims – both of which are process-driven to help meet demand. Some firms have been known to submit false claims in the hope of settlement on a nuisance basis. You need to make sure your firm:
- can show enough evidence of investigating whether a claim is valid
- only pursues claims with proper instructions.
Walking the line
The SRA’s report entitled Walking the line: balancing duties in litigation is an essential read for litigators. Its key message is that whilst you, as the solicitor, must act in your client’s best interests and fearlessly advance their case, you are not a “hired gun” whose only duty is to the client. You must always remember that you owe duties to the courts, third parties and to the public interest as well.
Balancing those duties can of course sometimes be tricky. There are numerous examples of disciplinary cases in the Solicitors Disciplinary Tribunal (SDT) where the balance of duties has tipped the wrong way and resulted in serious breach of the SRA’s Principles and Code of Conduct. Firms, managers and supervisors of teams must ensure that there are adequate client take-on and supervision procedures in place to avoid breaching the expected standards.
Integrity and dishonesty
Unfortunately, we have seen a number of cases in the SDT where litigators have backdated or fabricated documents to cover up mistakes, such as where they have failed to comply with court orders. In the high profile Sovani James case, a junior solicitor made untrue statements about the progress of a litigation case and fabricated and backdated documents to try to cover her tracks in fear of admitting her mistakes. The firm was criticised in the judgment for its toxic culture, but the solicitor was ultimately struck off (after an SRA High Court appeal).
Types of improper or abusive litigation
Making sure you’re aware of improper litigation can help you avoid issues down the line.
Misleading the court
This is one of the most serious offences a litigator can commit, either by yourself or allowing your client to do so.
Breach of duty
This might involve breaching your duty to:
- the court, third parties or the public interest, in the name of another interest – usually the client’s
- to the client in the interests of another party, usually the solicitor.
Examples of breaching duty to the client include: predatory litigation; schemes where clients are induced to incur unnecessary legal costs; or where the solicitor takes on a weak or unwinnable case without making the risks and potential costs clear to the client.
Predatory litigation against opponents
This is when high legal costs or public embarrassment are threatened to induce opponents to settle cases that have no real merit. Be careful that your correspondence could not be interpreted as blackmail.
Abuse of litigation process
This is when litigation is used for reasons other than resolving a genuine dispute – such as to harm commercial competitors or to achieve an outcome that is unconnected to the litigation.
Taking unfair advantage
This may occur when you are dealing with an unrepresented opponent.
Where court time is taken up unnecessarily and creates disproportionate costs.
Lessons to learn
- Act with honesty and integrity at all times.
- Do not just be a “hired gun”, and remember your duties to the court, third parties and to uphold the rule of law.
- Maintain your competency and identify your learning and development needs.
- Ensure your client take-on and supervision procedures are robust and effective.