The Solicitors Regulation Authority (SRA) has reminded solicitors that it is imperative to adhere to all their professional obligations when engaged in litigation. They must not allow themselves to become what the SRA describe as “hired guns” who simply carry out the instructions of clients.
To support this, the SRA have updated their guidance paper “Balancing Duties in Litigation”, which discusses the differing duties owed by solicitors in litigation and examines the ways in which misconduct can arise.
The paper cites examples, such as the use of non-disclosure agreements (NDAs) which expressly prevent lawful disclosure of issues such as discrimination, harassment or sexual abuse, and reiterates that it is essential that the profession uphold all its obligations – including always acting with integrity and upholding the rule of law.
The paper, which can be downloaded from the SRA website (https://bit.ly/1o3UQ5Y) looks at improper or abusive litigation, which includes:
- predatory litigation
- predatory litigation involving clients
- abuse of the process
- taking unfair advantage
- misleading the court
- excessive or aggressive litigation
- conducting knowingly unwinnable cases.
and acknowledges that, whilst there will always be complex situations where maintaining the correct balance between duties is not simple, nevertheless it is important for solicitors to recognise their wider duties and not to rationalise misconduct on the mistaken basis that their only duty is to their client. It says that those who cross the line into misleading the courts or abusing the litigation process should have no doubt that such conduct can attract serious consequences.
The topic is one of those that will be found in the Autumn Update to the SRA Risk Outlook.