There’s an interesting have your cake and eat it story in Litigation Futures picking up on research done by law firm RPC on an apparent increase in intra-solicitor complaints about an increase in solicitor on solicitor complaints. We are told the SRA received “over 2,500 complaints of this kind last year, compared to 1,850 in 2011”. That’s an increase of about 7 or 8% a year, I think. Put that against a growing legal services market and I’m not convinced its a big uptick. But whether it is or not, apparently, RPC want to blame clients not the solicitors making the complaints (or the solicitors’ who’s behaviour may have prompted the complaints).
RPC said complaints were “often made at the request of clients who may misunderstand what constitutes misconduct, misconstrue the meaning or intention of the other party’s solicitor, or seek to exploit an opportunity for tactical advantage”.
Graham Reid, legal director of professional regulation at RPC, commented: “This is not about solicitors’ standards slipping. Litigation tactics are getting tougher. My experience is that more and more complaints appear to be filed in order to gain a tactical advantage in court cases.
I suspect this is the kind of spin that firms feel obliged to put out when their law firm clients might be criticised. Imagine the clients sitting at their desks thinking RPC have done this bloody research showing our standards are slipping – they are plainly, not fully on our side. But in fact there is, or at the very least there may be, a case for saying standards have slipped (if for instance one takes the protestations of the judiciary about inappropriate correspondence in litigation at face value).
Indeed, one can see another argument that standards are slipping in some of the arguments made by PRC themselves. I’m rather troubled by the allegation that solicitors would be making misguided complaints, based on misunderstandings of misconduct, or for tactical advantage (the latter – to my mind – a potential abuse of process). An obvious question is who is shaping these understandings, who is offering the tactical advantages? The situation is a good deal more complicated than the RPC commentary suggests. Lawyers retain responsibility for their tactics, they do not simply follow instructions, and if the client is proceeding on the basis of misconceptions, misunderstandings of the law, and being allowed to exploit professional complaints for tactical advantage – in a proportion of these cases at least, the lawyers in question must bear some – and on occasion perhaps all – of the responsibility for that.
A final point odd point is made:
“Of course, solicitors remain under a conduct obligation to report to the SRA any serious misconduct on the part of another solicitor or firm. It’s not always easy to strike a balance between discharging this duty and client objectives.”
I’m open to persuasion, but if serious misconduct is seen, then I’m not convinced that there is a difficult balance to be struck – at least if one takes the professional principles seriously. But then again, I am often struck by how few lawyers understand that their duty to uphold the rule of law and the administration of justice comes into conflict with (say) the best interests of the client. Of course obligations of confidentiality must also be taken into account (so says O(10.4) of the SRA Code), but to my mind that effects the manner and process of the reporting (but I’d be interested in examples to test out the problem). Lawyers should be very cautious of giving a client the whiphand when it comes to alleging or not enforcing ethics. And they should be very wary indeed of blaming clients for misunderstandings, misconceptions and tactical devilry if they are the professional advisers of said clients. They are not some chump on the battlefield, doing the General’s bidding; they do not get to just shrug and say, not me guv.
Now, almost immediately after posting this story (too soon for it to be anything other than a coincidence), I see a Legal Business story on the same research where RPC are more clearly warning solicitors against over zealous complaining so perhaps they were quoted somewhat out of context (although I don’t think so given this is their own release) or has had a rethink:
RPC legal director Graham Reid said the rise suggested litigation tactics were becoming more aggressive, with legal teams launching complaints against their opposition at the instruction of clients.
Reid told Legal Business: ‘It’s my experience that solicitors, especially litigators, can be over-enthusiastic in making misconduct complaints about the other side’s lawyers. A misconduct complaint is a serious matter: it shouldn’t be used just for the purposes of litigation tactics.’
…He added: ‘A solicitor thinking of making a misconduct complaint should be aware of the risk of wasting the regulator’s time,’ said Reid. ‘The SRA does not have inexhaustible resources, and it may not like being used for the purposes of point-scoring in litigation.
‘Being on the receiving end of a misconduct allegation – even where it doesn’t have a grain of truth to it – can be very upsetting for the solicitor concerned, it can undermine client trust and create potential self-interest conflicts.’