The Solicitors Regulation Authority (SRA) confirmed last month that it was gathering further information about complaints made by Twitter users in receipt of libel demands from lawyers acting for George Galloway MP. Letters threatening legal proceedings and requesting £6,000 in costs were reportedly sent to a number of Twitter users who are alleged to have defamed the MP by accusing him of antisemitisim.
At first glance you could be forgiven for wondering why the regulator would be interested in litigators sending letters threatening legal action. Lawyers sue just as fish swim, right? It can’t really be professional misconduct for a litigator to demand money and threaten legal action can it?
Well actually, in some circumstances, yes it can (though I make no comment on the Galloway case). The SRA has just published a report which echoes earlier warnings that litigation can be ‘improper’ or ‘abusive’ if legal proceedings are issued or threatened to “gain money unethically by exploiting a client or third party’s lack of knowledge or resources”.
To give a practical example, in 2011 the Solicitors Disciplinary Tribunal suspended one former partner of Davenport Lyons solicitors and fined another £20,000 over their involvement in file-sharing litigation claims. The firm had sent a number of letters to individuals alleged to have illegally downloaded or shared copyrighted material (such as films) online. According to reports made by the SRA, the letters demanded compensation and costs and warned that recipients faced further action and increased costs if the matter was not settled. The Tribunal described the correspondence as “aggressive” and “overbearing”. While such an approach is perhaps not uncommon in litigation, in this particular case a large number of letters were sent to individuals with no obvious legal knowledge in claims that seemed far from clear cut in law. When lawyers pursue litigation in this way it can be seen that some individuals may pay up even though they have a good defence to the claim. Taking advantage of this fact appears to be the point at which the SRA might consider such behaviour to be ‘unethical’.
Representations were made in that case that a solicitor did not, save in the most exceptional of circumstances, owe a duty of care to an opponent in litigation. The point was also made during the hearing that a solicitor had a duty to set out the client’s best case. However, the Tribunal concluded that the letters were intentionally intimidating and went against the spirit of dealing with a case justly.
That’s not to say that lawyers cannot present a client’s case robustly – the Solicitors Disciplinary Tribunal has made it clear that they can. Neither does it necessarily mean that solicitors involved in litigation must ensure that their opponents do not fall into traps of their own making. However, the approach taken should not go against the spirit of dealing with a case justly. This is because lawyers owe a duty to the court and to the proper administration of justice as well as to their client. If those duties come into conflict then the SRA’s rules say that the public interest in the administration of justice must prevail. It’s not necessarily a defence in such cases therefore for a solicitor to say that he or she is simply advancing a client’s claim.
For similar reasons the SRA provides separate guidance that solicitors should not demand anything which is not ‘legally recoverable’. So although a client may well want to be paid for their solicitor’s full costs for recovering a simple debt for example, if there’s no legal entitlement to this money (i.e. because proceedings have not been issued) then the starting point is that it should not be demanded.
With this in mind, it is simple to see why the recent report by the SRA stresses that special care is needed where an opponent is unrepresented. Correspondence and tactics which are acceptable as between lawyers may well not be permitted it seems where an opponent is uninformed and unrepresented.
So what approach should lawyers be taking? Well, if a case is less clearly made out in law and an opponent is unrepresented, then solicitors should take care to avoid criticism that they are taking unfair advantage of the situation. Explanations offered by opponents should be properly considered and it should be remembered that unrepresented opponents might trust an opposing lawyer’s assertions much more faithfully than others would. Communications must not be misleading.
Ultimately, solicitors must maintain the trust which the public places in them and in the provision of legal services. In deciding whether to more formally investigate the complaints about George Galloway’s solicitors therefore, a key question for the SRA will be what the average person on the street would think of the approach taken on the full facts. That is likely to be key to any complaint of this nature. If you’re wondering yourself what people think though, be sure to resist the urge to ask anyone their opinion on Twitter!