Misleading once? Sending a Signal

I don’t really know what to think about the outcome of the SDT hearing into the Alistair Brett case. Here was a man plainly admired by many in the media law world. Many watched with spine tingling horror as his reputation disintegrated under cross examination in the a Leveson inquiry (you can still watch it online). But for that, he may well have escaped prosecution, let alone censure. It is a rare day that sees someone’s litigation tactics scrutinised under cross examination by a QC and a Court of Appeal judge.

The rarity of the scrutiny is important. Does it mean such cases are one offs or symptomatic of broader problems? Readers of this blog will know there are a list of cases which raise, at the very least, anxiety. Does rarity of detection mean rarity of occurrence and does that make the need for punishment less strong or stronger?

From comments reported from the SDT (HT Lisa Carroll of the Guardian) mercy was shown for the length and quality of Mr Brett’s career, his previously unblemished record. He did not carry the cultural baggage of being a new entrant into the profession, working in a small firm, but a rather different set of accoutrements. Does that mean he is less or more deserving of punishment? A quick look at the SDT site was not terribly enlightening. One solicitor was struck off for forging a decree absolute, put of her depth by the look of it and trying to keep everyone happy. Another was suspended for 18 months for altering the date on his rail season ticket. He was contrite and humbled by his own foolishness, at least that was his evidence.

For my own part I was struck also by the belief (am I wrong about this?) that plagiarism in law school can end a person’s legal career before it is begun.

So it was with interest that I read the statement on the SRA website about yesterday’s hearing:

The Times newspaper’s former legal director, Alastair Brett, will be suspended from practising for six months from 16 December by the Solicitors Disciplinary Tribunal following a prosecution by the Solicitors Regulation Authority (SRA).

The tribunal decided to suspend Mr Brett yesterday (Thursday 5 December) after it found that he had failed to act with integrity contrary to Rule 1.02 of the Solicitors Code of Conduct 2007, and knowingly allowed the Court to be misled in the conduct of litigation contrary to Rule 11.01 of the Solicitors Code of Conduct 2007. He was also ordered to pay £30,000 costs.

The SRA told the tribunal that in June 2009, while conducting litigation in the High Court on behalf of Times Newspapers Limited, Mr Brett knowingly or recklessly allowed a witness statement to be served in support of its defence which created a misleading impression. The Authority also said that during a hearing in that litigation before Mr Justice Eady, Mr Brett knowingly allowed the court to proceed on the basis of an incorrect assumption as to the facts.

The litigation centred on the naming of the author of the “Nightjack” blog as serving police officer DC Horton. Patrick Foster, a journalist working for The Times, discovered Nightjack’s identity by unlawful access to email accounts. Mr Brett denied the allegations, claiming he instructed Mr Foster to undertake research to demonstrate that DC Horton’s identity could be ascertained through open source material, and also denied knowing when Mr Foster first began to undertake that research.

In sanctioning Mr Brett, the tribunal described him as “a deeply unconvincing witness” who “blamed everyone but himself”. It found Mr Brett “adopted a win at all costs approach to the Nightjack litigation”.

It is this last paragraph which caught my eye. Having found that the court had been misled, and that this was a one off, if reports are correct, they had also said that dubiety wasn’t quite so one off as it might appear. Perhaps the words are taken out of context and the SDT is referring to Mr Brett’s performance before Leveson. Either way, it is interesting the SRA chose to highlight it.

For my part, on what i have read, I think Mr Brett probably does not think he did anything wrong. Walking the line between advocacy for a client and misleading one’s opponent or the court, and wanting to win at (almost) all costs, is not that uncommon, indeed it is sometime celebrated: he probably thinks what he did was justifiable. In six months time (at least in theory) he can try again. I have seen others describe this as simply a judgment call that was slightly off. The SDT clearly does not agree and neither, it appeared, did Leveson on the fateful day he cross examined Alistair B. Whether a six month suspension of someone who blames everyone but himself is a strong enough signal in such circumstances, or is long enough to reform his view is open to doubt. I have no doubt whatsoever that the humiliation of Mr Brett is significant punishment; and that humiliation has been visited on him twice. But in the absence of meaningful contrition and acknowledgment of wrong, six months suspension for a breach going to the heart of a solicitors’ duty to the rule of law appears on light side of generous. Until, at least, we know more.

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