Balancing duties in litigation - SRA report

The Solicitors Regulation Authority ("SRA") released a risk consultation report on balancing duties in litigation in November 2018. This article will consider some of the take-home points from the report.

“Solicitors are responsible for strategy on their client's case and cannot disclaim responsibility on the basis of acting on instructions”. – The SRA

The Principles

The SRA Code of Conduct is made up of Principles, Outcomes and Indicative Behaviours. The Principles are the ten core doctrines solicitors must abide by (or find themselves in potential breach).

In a field such as litigation the most pertinent conduct points relate to the following:

• Upholding the rule of law and proper administration of justice.
• Not allowing your independence to be compromised.
• Acting in the best interests of each client.

When the Principles come into conflict, it often concerns acting in the best interest of clients versus upholding the rule of law and proper administration of justice. It is noted that when these duties conflict the duty to uphold the rule of law will prevail.

Non-disclosure agreements ("NDAs")

In light of the #metoo movement and other recent news items concerning harassment and discrimination, the report does not miss the opportunity to comment on the do's and don'ts when it comes to drafting NDAs.

An NDA is a confidential agreement between the parties to it. The agreement usually stipulates that the contents, and in some cases the mere existence of the NDA, cannot be disclosed to third parties.

The report highlights the potential risk for improper use of NDAs when they seek to prevent lawful disclosure of issues such as discrimination or harassment.

SRA Guidance on NDAs:

• The report states that NDAs should not prevent anyone from doing anything that they are legally entitled to do.
• Signatories to NDAs should not be prevented from keeping a copy of the agreement.
• Solicitors should assess the wider context when formulating NDAs and consider the vulnerability of parties especially where serious allegations have been made.

Advice

The report notes the need for solicitors to inform clients when their services may not be needed and allow the client to make an informed decision about engaging a solicitor.

The report also makes clear the importance of making clients aware of the potential costs and risks involved in pursuing litigation. Importantly, it reminds readers that litigators should advise clients on what can be accomplished and the proportionality of a course of action.

Duties

The report comments on the increase of reports about solicitors misleading the court increasing each year from 2012 to 2017. These figures illustrate the importance of complying with Principle 1 to uphold the rule of law and proper administration of justice.

Reminders in the report include the following:

• Bring and defend cases honestly.
• Ensure clients are aware of the implications of signing a statement of truth.
• If a client’s case is not honestly brought a solicitor should not act in this regard.

Public Trust 

Between 2013 and 2017 there was significant press coverage surrounding a large number of holiday sickness claims against hotels, some brought without merit. The report warns of the risk to the reputation of the profession when litigators do not act with integrity and the impact this has on public confidence in the profession.

In some instances firms had not properly investigated their clients' cases which were found to be dishonest. As such, claimants were faced with costs orders and sanctions including criminal prosecutions.

Conclusion 

Overall the report contains helpful reminders for solicitors to be aware of the overarching duties when acting in litigation. The report also highlights useful points in relation to NDAs. It will be interesting to see if the scope of such SRA reports change with the introduction of the new principles, code and rules later this year. However, the report advises that even with the new rules the ethical duties of solicitors will remain the same.