Act Within The Rules Or Get A SLAPP On The Wrist

The Solicitors Regulation Authority has identified a worrying trend of solicitors and legal professionals attempting to persuade parties that it might be unwise to act in a certain way or communicating their disapproval. The SRA pointed out that parties have been doing this by hanging the spectre of hard-hitting legal action over their heads. The Regulator is worried because these questionable practices in many cases are deliberately designed to stymie the disclosure and the investigation of money laundering and corruption. The Law Society have labelled this form of unscrupulous tactics as “SLAPP” which is an acronym standing for ‘Strategic Lawsuits against Public Participation’.

What Kinds of Behaviour is Classified as SLAPP?

The SRA provided several examples of conduct constituting SLAPP and appear to have targeted lawyers who have used Confidentiality Agreements to unreasonably threaten further action if a person assists in a police investigation or uses the Agreement to manipulate the evidence provided. There have also been examples where the lawyer has incredibly not allowed a client to have a physical copy of the Agreement and instances where lawyers have wrongfully advised that if clients fail to comply with said CDAs then they may be jailed.

Historical cases from between 2013 and 2017 involving holiday illness and noise induced hearing loss are also on the SRA’s radar. It produced evidence of a five hundred percent spike in cases where dishonesty was an element, criminal sanctions imposed and costs awarded. It warned that some cases were questionable on the evidence and in some instances no further investigation was carried out whatsoever. Lawyers face serious consequences if they do not take the Regulator’s warnings seriously.

Other examples of such behaviour include lawyers struck off the roll for misleading the court by abusing the court appeal process. Solicitors should avoid submitting last minute claims and should be disclosing information detrimental to their cases. The Solicitors Disciplinary Tribunal struck a solicitor off for failing to disclose.

What Should Legal Professionals Be Doing To Avoid Being SLAPPed Down?

In a publication dated 4th March 2022 the SRA set out three areas where this behaviour is rife. The Regulator reminded legal professionals of the importance of always acting in compliance with the Solicitors Code of Conduct, Principles and duties. The SRA:

• advised lawyers to comply with the rules.
• not to act in a manner which brings them into conflict with the wider public interest principles. In the event of a conflict between the Core Principles and the ‘wider public interest’ it will favour the latter.
• warned lawyers to avoid acting in a hostile and menacing manner.
• strongly advised lawyers not to submit weak claims or threaten to proceed with such claims as a negotiating tactic.
• reminded lawyers that the obligation to report such conduct to it is central to the regulatory Code.
• advised lawyers that such tactics may equate to evidence of misconduct.
• clarified that such incidents must be reported to it because they are potentially serious breaches of regulatory standards.

The Regulator advised solicitors to openly communicate with their clients about the scenarios in which their professional duties clash with their duties to a particular client. Solicitors should keep things simple and review the Code of Conduct. An example of such an approach is to advise a client that it would be unwise to flagrantly breach the rules by misleading the court. Such behaviour would be viewed in a very dim light indeed by the Regulator and may result in a solicitor being struck off.

ASSESSING FIRMS

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SOURCES USED WHEN WRITING THIS ARTICLE

[1] Solicitors Regulation Authority – Conduct in disputes – 4th March 2022 - SRA | Guidance | Solicitors Regulation Authority

[2] Cross, Michael – Solicitors Regulation Authority updates warning on SLAPP misconduct – 7 March 2022 - SRA updates warning on SLAPP misconduct | News | Law Gazette

[3] Solicitors Regulation Authority Standards and Regulations - SRA | SRA Standards and Regulations | Solicitors Regulation Authority

[4] SRA – Reporting and notification obligations – 25 November 2019 - SRA | Reporting and notification obligations | Solicitors Regulation Authority

[5] SRA – Solicitors Code of Conduct for Solicitors, RELs and RFLs - SRA | Code of Conduct for Solicitors, RELs and RFLs | Solicitors Regulation Authority

[6] Principles 1 to 7 Solicitors Code of Conduct

[7] Solicitors Regulation Authority – Holiday sickness claims – 25 November 2019 - SRA | Warning notice | Solicitors Regulation Authority

[8] Solicitors Regulation Authority – SRA enforcement strategy – 7 February 2019 - SRA | SRA enforcement strategy | Solicitors Regulation Authority

[9] Solicitors Regulation Authority – Decision-making, reviews and attendance procedures – 25 November 2019 - SRA | Decision-making, reviews and attendance procedures | Solicitors Regulation Authority