"WALKING THE LINE": THE SRA ON BALANCING THE DUTIES OF LITIGATORS IN LITIGATION: A POTTED SUMMARY

For reasons that may become evident in later posts this is an apposite day to consider the duties owed by litigators. The SRA have produced “Walking the line” a consideration of the ethical duties owed by litigators.

A BRIEF SUMMARY

This can all, fairly, be described as mandatory reading. The SRA identifies a number of key areas.

• Predatory litigation. Where litigation is used as a threat in cases that have no real merit.
• Abuse of litigation process. An example given is incurring unmanageable costs for a commercial rival of the client.
• Taking unfair advantage. Of another party’s procedural errors, or lack of knowledge.
• Misleading the Court. Where the solicitor knowingly or recklessly gives false information or permits it to be given.
• Excessive litigation. Where a solicitor fails to consider their other duties when pursuing litigation excessively or speculatively.

Other examples given are:

• Clients induced to proceed with litigation when there is little or no legal merit and litigation is not required.
• Taking on weak or unwinnable cases, where a solicitor accepts instructions without making the potential risks and consequences clear to the client.
• “Predatory litigation schemes“.

SOLICITORS MISLEADING THE COURTS

The SRA state:

“One way we can monitor the scale of this risk is by analysing the number and type of matters reported to us. Reports are often made to us by courts, clients and other parties to litigation. For example, reports of solicitors misleading the courts have broadly increased in recent years”

TAKING UNFAIR ADVANTAGE

“In advancing a client’s interests, solicitors must be careful not to take unfair advantage of the opponent or other third parties such as witnesses. Special care is needed where the opponent is unrepresented. Solicitors need to consider this duty when faced with a party showing a simple lack of legal knowledge or obvious procedural misunderstandings.

As the Court of Appeal has set out, this duty does not necessarily mean that solicitors involved in litigation must ensure that their opponents do not fall into traps of their own making. 10 They must, however, take care not to mislead. There can be a fine line between proper defence of the client’s interest and taking unfair advantage of others, usually highlighted by any form of deceit or misinformation.”

MISLEADING THE COURT

“Solicitors who allow their client to mislead the court or who do so themselves risk serious consequences. The courts have made it very clear that they regard this as “one of the most serious offences that an advocate or litigator can commit”.”

EXPERTS

“Attempts to induce expert witnesses to alter their reports to the benefit of the solicitor’s client may, depending on the circumstances, represent another example of misleading the court. A survey in 2014 revealed that nearly a third of expert witnesses had felt pressure from those who commissioned them, including barristers and solicitors, to make changes to their reports in a way that they believed harmed their impartiality.  This headline finding should be treated with care, as some of those requests may have reflected a desire for clarification. Others, such as requests to alter doctors’ notes, may represent misconduct.”

EXCESSIVE LITIGATION

“Excessive litigation takes up court time and creates disproportionate costs.

The courts have made clear their disapproval of what they consider to be excessive litigation. Past examples have included significant adverse comment on the conduct of commercial cases that occupy court time to the detriment of other cases. Such cases can involve disproportionate valuations of the claim, wide-ranging allegations of impropriety and inappropriate volumes and tone of correspondence. The courts often accept that the case has been pursued in accordance with the client’s instructions.

Although solicitors are not routinely obliged to challenge their own client’s case, they must refrain from advancing arguments that they do not consider to be properly arguable and they must have regard to the proper administration of justice. The courts have noted that if solicitors engage in litigation that is disproportionate to the true facts at issue, their clients should expect to face costs calculated on the indemnity basis. It is important to note that solicitors must be aware of the risks of going beyond their instructions in pursuing litigation. Should a client wish to impose limits on the means employed towards their goals, whether due to personal values of their own or their risk calculations, they should have their instructions respected.”

CONDUCTING KNOWINGLY UNWINNABLE CASES

“This involves solicitors taking on weak or unwinnable cases, where a solicitor accepts instructions without making the potential costs and risks clear to the client. The use of conditional or contingency fee agreements can mitigate this risk because the solicitor has a financial stake in the outcome, but there is evidence of misuse of such agreements.

It is common for conditional fee agreements to include clauses that justifiably enable the solicitor to cancel the agreement subject to certain conditions. An example of probable misuse of such a clause involved a solicitor ending a conditional fee agreement and billing the client, citing reasons that were already known to the solicitor from the outset. The result was that the client had gained no benefit but incurred expense and a loss of time.”

SUMMARY OF PRINCIPLES

“There will always be complex situations where maintaining the correct balance between duties is not simple and all matters must of course be decided on the facts. 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.”