What’s wrong with SRA Guidance on Confidential Information

Graeme Johnston, Jenifer Swallow and I have written a paper on this topic which we have submitted to the SRA and can be downloaded here.

It begins like this…

1. The issue of lawyer involvement in wrongdoing has risen up in the public consciousness. A critical issue for lawyers is what to do when they face ethical pressure (e.g. they become aware of, or are asked to advise on or facilitate, unlawful activity or are pressured to behave in unprofessional ways).
2. We believe that proper, accurate and constructive guidance, and support from the professional regulators can help reduce these problems significantly. Such guidance should:
   2.1. cover critical issues on advising independently and objectively
   2.2. being clear who the client is including, in employer-client relationships,
   2.3. reporting up within the client and, occasionally, reporting out in ways which properly balance professional obligations to uphold the rule of law and the best interests of the client.
3. Our own discussions with lawyers in private practice and in-house suggest that the boundaries and issues in this area are not clearly understood. This means that ethical pressure is not always effectively dealt with, including in the context of the employer-client dynamic and the inherent tension that presents. This can result in poor outcomes for clients in the longer term, jeopardy for an array of stakeholders in the relevant business, damage to the public interest in the administration of justice, and acute, sometimes irreparable, harm to the mental health and careers of the lawyers concerned.
4. We also believe there are related, significant misunderstandings and boundary issues around the handling of legal professional privilege. A corollary of this is solicitors asserting confidentiality and privilege to protect reputation and wrongdoing, sometimes inappropriately.
5. As part of our interest in this area, we have taken a close look at the SRA’s guidance on disclosure of confidential information, noting the guidance of other legal regulators may also be relevant here, for example the Bar Standards Board overseeing barristers who work in-house. Our view is that the current SRA guidance is inadequate in a number of respects:
   5.1. It understates the right or duty of disclosure in various specific ways
   5.2. It sometimes appears to get the law wrong
   5.3. It lacks appropriate clarity
   5.4. It often nudges the reader towards non-disclosure rather than stating the position more neutrally
6. For all those reasons, we think that the guidance inappropriately discourages effective reporting of serious misconduct and risks of harm.
7. Improved guidance would provide valuable support to lawyers faced with conflicts between overweening clients (or executives within clients) and their obligations as a solicitor. The SRA can help address these problems through better guidance and support as well as hosting workshops developing and then rolling out new guidance. The ways in which the SRA supports lawyers more broadly, and in-house lawyers, in particular, merits separate attention going beyond our thoughts here.
8. The guidance does not address lawyers’ obligation to report-up within organisational clients when faced with evidence of potential ‘iniquity.’ This is something that should be done and which many lawyers will or should already be doing. But our experience in talking with lawyers who have faced, raised, or ignored such harms is that they sometimes have a less strong grasp of reporting up obligations than they should. We think the guidance should deal with reporting up problems alongside reporting out issues for maximum utility.
9. In particular, improving the guidance on confidentiality is an opportunity for the SRA to show it has taken onboard the concerns, expressed to them by practitioners and commentators, that they do not take ethical dilemmas within commercial practice seriously enough.