Litigation ethics under pressure from new challenges

Professional ethics are central to the role of solicitors and are fundamental in upholding the proper administration of justice and the rule of law – they are part of the bedrock of the legal profession. Perhaps nowhere is this more well-established than in the London litigation market, a global centre for legal services renowned for its integrity. Yet, the landscape is evolving. While serious ethical breaches remain rare, the profession does face new and nuanced challenges in the way that ethical duties are now being looked at and, in some instances, weaponised by parties to litigation and even by the regulators themselves.

Serious ethical breaches are rare in the London litigation market

The view of the London Solicitors Litigation Association (LSLA), representing nearly 4,000 civil litigators in London, is unequivocal: the overwhelming experience is that solicitors in the London litigation market adhere to exceptionally high ethical standards. In practice, instances of serious ethical misconduct are few and far between. 

When litigators do fall foul of the required ethical standards, the consequences are significant, not only for the solicitors involved, but also their clients. For the solicitors, breaches of professional ethical duties—whether intentional or inadvertent—can result in a range of sanctions, from reprimands and fines to suspension or striking off. When faced with action by the Solicitors Regulation Authority, often the result can be unpredictable (to put it lightly).

Proposed developments by the LSB and areas of real concern for solicitors 

The LSB’s proposed outcomes require regulators to monitor and supervise the conduct of authorised persons, take effective action to address non-compliance, and regularly evaluate the impact of their measures. At a high level, this all makes sense and is unobjectionable. The LSB goes on to suggest that when ethical standards are breached, there should be a clear, proportionate, and transparent response. Again, so far so good. In circumstances where there are clear breaches or professional ethical duties, action should be taken, for example: misleading the court, making false claims, distorting evidence, misrepresenting facts, workplace bullying and harassment, academic malpractice, and submitting false or exaggerated evidence. 

However, there are a number of other common practices which are receiving a lot more public attention and scrutiny, which the LSB appears to be jumping on board with. But in reality, there is far more nuance involved. Much has been said in the political and legal space about NDAs and so-called SLAPPs in recent years. In relation to the former, NDAs and confidentiality more broadly continue to play a very important role in the practice of litigation in London, protecting the interests of all parties involved. To the extent that there is specific inappropriate conduct with particularly vulnerable individuals, that is an entirely separate matter and an outlier. Any further regulation of the use of NDAs should not be driven by behaviour at the extremes, undermining the vast majority of situations where NDAs serve an important and fundamental role. As regards so-called SLAPPs, there is a lot of talk with very little substantive evidence. The LSB has not disclosed the evidence relied on in asserting the existence of SLAPPs and failings in professional ethical duties said to be connected with the same. However, the LSLA does have concerns that the position on the prevalence, or otherwise, of true SLAPPs in the London litigation market is significantly exaggerated. Increased regulation based on misinformation is not good for anyone.

There are a few specific areas of practice that the LSB appears to be focused on, where (at least as regards litigation solicitors) the LSB is either going too far, or has not understood the nuance involved.

First, the LSB has a particular focus on the duty to act in the best interests of the client not overriding duties to the court, or the duty to act with independence and integrity. Balancing the respective duties has always been a feature of practice as a solicitor. In many instances, this balancing exercise is clear-cut and straightforward. The position is already captured within the SRA principles, where the introductory paragraphs state: “Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors' profession and a safe and effective market for regulated legal services) take precedence over an individual client's interests. You should, where relevant, inform your client of the circumstances in which your duty to the Court and other professional obligations will outweigh your duty to them.”

However, there seems to be a potential shift from this well-understood position, such that a solicitor who has not engaged in any unlawful conduct or breached any express duty, is subsequently (post event) said to have somehow preferred their own client’s interest over some other broad, unspecified standard that is subsequently said to have been breached through a focus on one duty over another. It does not follow that serving one’s client’s interests and complying with the law is necessarily too narrow a position to adopt in the context of the litigation profession. To the extent that there is to be any move away from this, the precise regulatory framework would need to be clearly set out, such that (as with the question of compliance with the law) the position for solicitors is clear and well understood. A solicitor must be able to objectively determine whether any proposed course of conduct is within or without the required standard.

Secondly, confidentiality - a cornerstone of the solicitor-client relationship. For solicitors to effectively discharge obligations to their clients, the duty of confidentiality is paramount, recognised by the long-established protections of legal advice privilege and litigation privilege. This is a duty that must continue to be respected to the highest degree and any suggestion that solicitors, particularly those operating in the litigation field, should be under any new obligation to report or self-report, outside of already well-established regimes (for example, in relation to money laundering) would have potentially serious ramifications for the profession. In any event, careful consideration would need to be given to processes, support and guidance, to enable solicitors (particularly those in smaller firms) to determine precisely what is required of them in any particular scenario.

Thirdly is the question of client association. The LSB raises concerns about solicitors continuing to act for clients engaged in ongoing wrongdoing. This has the potential to run roughshod over the fundamental principles of the rule of law and access to justice: even those accused of serious wrongdoing are entitled to legal representation. There should be no suggestion that it is the place of any regulator to determine that natural or legal persons are, by virtue of any conduct, no longer entitled to legal representation. Once a solicitor is instructed in live litigation, provided a litigation strategy is legitimate and does not clearly breach any regulatory or legal obligation, a solicitor is often not (and should not be) in a place to cease acting simply because there are other strategic options available which may be seen as more ethical or equitable. A decision to seek to come off the record in active litigation is an extremely serious decision, which no solicitor would (or should) take lightly as it will inevitably have significant consequences for the client, other parties to the litigation and potentially the court and its wider users. It is also not always easy to achieve, particularly where neither the client nor another solicitor is willing to come onto the record. This issue is even more acute for inhouse solicitors who may, in any event, not be in a position to take such a decision in the context of their employment. Any increase in obligations on solicitors to consider the appropriateness of their continuing to act for any client should be the subject of very careful consideration. It would also be imperative for any such obligations to be clearly defined to enable any solicitor to know precisely what is required of them. 

Emerging Threats: the weaponisation of ethical or regulatory breaches

While the incidence of serious ethical breaches remains low, the use of allegations of regulatory or ethical breaches as a litigation strategy is on the rise. This trend is becoming increasingly prevalent, with parties seeking to gain a tactical advantage by accusing opponents of ethical misconduct – with or without basis. At best, they are a distraction from the substantive issues in dispute but can have much more serious ramifications for those involved, particularly if regulators are not well equipped to quickly see through baseless or irrelevant allegations, and thus able to focus on those cases of clear, serious breaches of ethical standards. 

Supporting and Empowering Solicitors: Education and Guidance

One area where the LSB and the LSLA are aligned is the need for adequate education and training on professional ethical duties, including practical application in different contexts (private practice, in-house, and in different practice/industry/sector areas), recognising particularly unique and distinct challenges of the relevant context, and the opportunity to test real and difficult potential scenarios. 

The relatively recent change in approach to continuing professional development, with a shift from more prescriptive CPD requirements, with solicitors required to complete a set number of hours of training each year, towards a more flexible, reflective model, where solicitors are responsible for identifying their own learning and development needs, then making (and delivering on) a plan to address these development needs, has potentially created a gap in this area. This is particularly the case for solicitors operating in smaller, less well-resourced firms which may not maintain extensive learning and development programmes. The LSLA can therefore see merit in exploring some element of compulsory training on professional ethical duties, tailored to the specific circumstances of the relevant solicitor’s practice.