Hackgate V: Lawyers – a duty not to mislead?

There’s another story in the Guardian about Hackgate, suggesting a deepening of concern over  Julian Pike (of Farrers) revelations to the DCMS Select Committee (see my post on that here).    The key allegation appears to be this:

In correspondence seen by the Guardian, the BBC had alleged: “NI executives made statements, that have subsequently shown to be misleading and untrue, that Clive Goodman was ‘one rogue journalist’ at the News of the World who commissioned [private detective] Glenn Mulcaire to ‘hack’ into voicemail messages.”

Pike replied from the offices of the law firm in Lincoln’s Inn Fields that NI had “made it clear that at no stage has any executive of the company made public statements knowing them to be misleading or untrue … if you make any suggestion in the programme that any NI executive has made a statement knowing it to be misleading and/or untrue this will be highly defamatory and the relevant individual(s) will be entitled to commence proceedings in respect of which they will be unquestionably successful”.

The BBC said in a statement on Friday the Panorama team “were surprised to hear Mr Pike’s testimony … since, on the face of it, it seems to contradict one aspect of what he’d written in a letter to the programme.”

It added:

As a result, we have written to the Solicitors Regulation Authority today seeking advice in relation to their rules governing the conduct of solicitors.

The Guardian then goes on to suggest:

According to SRA rules, it may be a disciplinary offence under the code of conduct for a lawyer to do anything that “misled or had the potential to mislead clients, the court or other persons”.

Interestingly, although one might expect that to be a rule under the Code of Conduct, I do not think it is.  What they are quoting from is the SRA Disciplinary Procedure Rules.  These rules are not a model of clarity (I am imagining seasoned readers’ surprise).  It seems to me they require a finding of a breach of  requirements imposed under the Solicitors Act, the Access to Justice Act or the Legal Services Act; a finding of professional misconduct (under the Code of Conduct); or any substantial contribution to a significant breach of the terms of the licensed body’s licence before Rule 3 of the Disciplinary Proceeding rules kick in.  The words quoted by the Guardian permit the SRA to punish a solicitor if and only if there has been some other breach of the statutes, the Code or the law firm’s license.

If I am right about that, then the implication may be that lawyers are permitted to mislead others unless that is prohibited by the rules of conduct.  Can that be right? What do the rules say?

I argued in my previous post that the broad principles (integrity, etc.) apply and that a duty to the public interest, and the administration ofjustice, should trump client obligations.  That may be enough but as also noted in my previous post the main rules applicable to this case appear to apply by analogy only: Outcome [essentially a Rule] O(5.1)  indicates a solicitor must, not attempt to deceive or knowingly or recklessly mislead the court;” and/or under O(5.2) they must not be, complicit in another person deceiving or misleading the court;” and under O(5.3) they are also obliged (without specific reference in the rules this time to ‘the court’) under O(5.7)to ensure that evidence relating to sensitive issues is not misused”.

Further, as I noted in the previous post, “Whether this rule should be taken as only applying to court based disputes and, in particular, cases when they are being dealt with in the court room is highly debatable.  Court is widely defined to mean, “any court, tribunal or enquiry of England and Wales, or a British court martial, or any court of another jurisdiction”.  One question is whether a select committee inquiry falls within this definition.”  The new piece of information in the Guardian story suggests that litigation was threatened relying on (what is alleged to be) an threat of defamation that (it is alleged on the basis of Mr Pike’s testimony to the Select Committee) was misleading or even unfounded.  In this light, one of the indicative behaviours in the Code (which gives indications of how the rules (or “outcomes”) should be interpreted) kicks in.  It says this:

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles: IB(5.7) constructing facts supporting your client’s case or drafting any documents relating to any proceedings containing: any contention which you do not consider to be properly arguable…

The defamation threat significantly strengthens the case that Outcome 5 applies.

There is one other relevant outcome. Outcome 11.1:

you do not take unfair advantage of third parties in either your professional or personal capacity

It is distinctly arguable that if a solicitor asserts something that is false, or based on a false premise, and it is known to them to be false, that it might result in unfair advantage being taken of a third party (in this case the client’s opponent).  If the BBC back down because of a specious threat, there has been unfair advantage.

That said, the indicative behaviours on this outcome are much more concerned with when lawyers deal with lay opponents and third parties than sophisticated players like the BBC.   Would the SRA (and the courts) interpret the rule on its face or in the light of the guidance?  We do not know, though my view is that they should look to the rule on its face there are plausible arguments in the opposite direction.

This opens up an interesting question for the profession and the SRA.  Is it professionally appropriate behaviour to mislead an opponent or a third party?  If so, when and, moer importantly, when not?  The answer is not always obvious.  After all, negotiation – the mainstay of deal-making and dispute resolution – can be characterised as an exercise in legitimate deception.  Advocacy, too, is sometimes characterised in that way.  This may be why there is no general duty not to mislead in the Code.  There is though, a significant difference between the advocate who insincerely advances his clients cause (because the client has a right to representation and they have an arguable point) and the support or advancement of a deception.  Lawyers sometimes are obliged to practice ‘insincere speech’ but that must take place within limits.  It is too early to be sure of the situation as regards the Hackgate lawyers, but is a reminder that administration of justice depends on advocacy and negotiation taking place within limits.  It is also a reminder that we have detailed rules on courts, and to a point on litigation, but not beyond.  The reasons for that are shaky ones.

The time then is ripe for regulators to send clearer signals about what those limits are.  They may take the view that the situation is adequately covered by the key principles.  Whether the SRA’s decides to investigate and proceed for breaches of professional conduct will send a powerful signal on the importance of honesty and integrity in the profession.  They cannot avoid facing up to such high-profile allegations, investigating swiftly and telling the profession what they think.  They may also need to think about developing and clarifying their Outcomes (rules), but enforcement (or the lack of it) will be a key means by which they signal what Outcomes Focused Regulation Means in this context.

5 thoughts on “Hackgate V: Lawyers – a duty not to mislead?

  1. Could I make one small point. You say “lawyers are permitted to mislead others unless that is prohibited by the rules of conduct.” That is not totally correct. You should more accurately say “solicitors are permitted to mislead others unless that is prohibited by the rules of conduct” since you are basing your statement on the SRA rules and not the rules which are applicable to barristers. It remains the case that all traditional barristers have a sign on the front doors of their homes saying “Tradesmen and solicitors please use the rear entrance” 🙂

  2. On 19 October, I sent the following to the Solicitors Regulation Authority, via the “contact us” form on their website:

    “I wish to ask the SRA to comment as a matter of urgency and in the interests of maintaining public confidence in the legal profession on statements made by Mr Julian Pike of Farrer & Co to the House of Commons Culture, Media and Sport Select Committee earlier today. In those statements, Mr Pike appears to have admitted that he and his firm knew that his client, News International had provided untrue evidence in 2009 to Parliament, but failed to either to make representations to his client about this, or to take steps to correct the faulty evidence. Does the SRA believe that such behaviour is compatible with the professional and ethical standards required of solicitors? If so, why? If not, what is the SRA going to do about this?”

    I have not yet had any reply other than an automated response within a few seconds of completing the “contact us” form.

    I will now send a reminder to them, asking for a response as a matter of urgency.

  3. The “outcomes focussed regulations” regime only apply for actions post-6 October 2011.

    Therefore the SRA 2007 Code of Conduct applies in this case (other than to any evidence given to the Select Committee)…

    1. Yep – you’e right. I’ve been looking at the current rules (I made this clear in the previous linked post (apols not for doing that here) for illustrative purposes because I want to educate about the current rules). The prior rules are, I think, materially very similar.

  4. All academic anyway, as, in my humble experience, the SRA is nothing more than a colossus stuffed with clouts, otherwise known as a sheep in wolf’s clothing. Unless, of course, the press is involved or there is a criminal conviction.

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