Continuing the conversation on SLAPPs

I have taken a closer look at the SRA’s thematic review on conduct in disputes, slightly oddly named as it centres SLAPPS. It is the first of at least two such reviews.

Having spoken to 25 heads of department and 24 fee earners in firms dealing with “reputation management” matters, the central, but largely hidden, tension in the SRA’s report can be captured by two positions.

In the first position, the SRA emphasises the need for litigators to balance competing principles under the Code, the need to protect the rule of law, and the administration of justice, public trust in the profession, independence, honesty, and integrity with the best interests of. The solicitor should see, they say, integrity and independence as their best guides. This is an interesting finesse on their normal approach: the SRA Handbook says it is the public interest, and particularly the public interest in the administration of justice which should be the focus in balancing competing core principles. Perhaps the SRA is emphasising subtly the ways in which some SLAPP tactics are or are complicit in strategies of deceit. If you are helping liars lie through silencing those investigating them then…. You get the point.

The second excerpt elsewhere in the report is a quote from a partner in one of these firms: “You have your principles,” this partner says, “but then there is also the commercial reality.” One is tempted to both sympathise, taking the client’s interests seriously is not to be under-empashised still less when it pays the bills, and also wonder which principles are not in accordance with their own.

That commercial reality does not often intrude directly into the analysis of the SRA or the responses of the interviewees to questions posed by the SRA, although there is a sense in which some of the respondents at least wanted to downplay the significance or existence of SLAPPS in their area.

There is little from the report to gauge whether SLAPPs are a significant problem. We know that the SRA had previously not received significant numbers of complaints until SLAPPS became higher profile about a year ago. We know now too that they have about 40 complaints under investigation, a dramatic change. I note in passing, also, that Hugh Tomlinson KC, in seeking to downplay SLAPPs on a recent (excellent) podcast said that of six celebrated cases often identified as SLAPPS in which he had been involved, “perhaps two were genuine SLAPPs”. I assume Hugh is identifying as perhaps genuine SLAPPs cases brought by his opponents rather than cases he himself was defending but, in any event, two out of six SLAPPs, one third, is not, to my mind a low figure, especially for cases that make it all the way to trial.

Another piece of data in the review is the extent to which the files reviewed by the SRA revealed SLAPPs. They looked at 50 closed files, although the selection of these files is not explained and may have been influenced, wholly or in part, by the firms themselves). Although they said they did not find any SLAPPs in such cases, they also slightly contradictory identify one potentially meritless claim within their sample. Either way, this is a comfortingly low number; albeit one would expect somewhat low numbers for a variety of reasons.  Interestingly too, they report an absence of the abuse of without prejudice/strictly confidential correspondence. Critics of SLAPPs report the practice as routine. This is a conflict of evidence that merits probing.

The review report also indicates that their interviewees identified a handful, three or so, cases that were potential SLAPPs; although implicitly chastising them for not having reported them already to the SRA and the nature of the review itself might inhibit the identification of such cases. I don’t gamble in this Casino, and I have not seen anyone else gambling either, would be the approach if that were right.

The SRA I think acknowledge in the report that this is not really the vehicle to identify the scale of the SLAPP problem, but their data here is interesting nonetheless. It is not suggestive of SLAPPs being seen as a common and significant problem from the SRA’s perspective at this early stage of their work.

The more central focus of the review is around pre-action litigation processes and policies. They complain that those they spoke to did not appear to have had enough training in the abuse of litigation, and a significant number were not aware of the SRA’s guidance on the conduct of litigation. About one-third had no recent training on the issue of SLAPPS, in spite of concerns about SLAPPS rising up the political and regulatory agenda. The SRA emphasise the need for maintaining up-to-date policies, training, and effective oversight and supervision. Nonetheless, with some exceptions, the SRA felt the fee earners they spoke to were broadly aware of what SLAPPs were and the problems they posed (although some failed to spot that SLAPPs could be brought against organisations as well as individuals).

What the SRA saw much more concerned about was the failure of a substantial proportion of those they spoke to understand the obligations of solicitors to report serious misconduct to the SRA where SLAPPs are brought against their clients. One prophylactic argument for a reluctance to report the interviewees drew upon was the claim that tactical conduct complaints were being made with increasing frequency (which they would not do). They might be right, of course, but I recall similar concerns being raised 15 or 20 years ago. It’s the sort of thing people might just say because it feels true. Also, it is strange that solicitors claim such tactical complaints being made increasingly without apparently understanding the reporting obligations themselves. Or that the increased focus and guidance here might, for those who have read it, led to more legitimate complaints.

In discussing SLAPPs in the review, we get a bit more of a sense of what the SRA feels like it’s looking for claims to have been brought improperly or using abusive tactics. We know that solicitors are supposed to take reasonable steps to ensure themselves that the cases they bring are properly arguable. The review discusses this in terms of cases which are meritless, spurious, legally flawed, or bound to fail. Some interviewees talked about unreasonable threats of litigation, perhaps a slightly wider concept. If one reads very closely, perhaps too closely, there is an underdeveloped sense that inequality of arms, and inappropriate motives, might tip borderline cases into being SLAPPs; they should certainly encourage a more careful risk assessment by the lawyers involved. Lawyers are also supposed to consider whether threatening proceedings might be counter-productive (the Streisand Effect); although presumably the idea here is they must counsel their client on the risks rather than see a counter-productive litigation threat as a SLAPP.

Some of the detailed and useful work of the review focuses on the ways in which best practice in due diligence is, to the SRA’s eyes, demonstrated by those they spoke to. Taking pains to understand the client’s case and why they want to bring it, so the motive for threatening legal action as well as the claim is understood) and taking steps to verify the claim, through documents, speaking to witnesses, and doing so for each particular allegation with a keen eye on the legal tests applicable, are all praised. Where such verification is not possible, it is suggested firms have a practice of thoroughly testing a client’s case with the client themselves by going through their instructions vigorously. A further interesting point implied by this discussion to is the need to keep the merits of the claim under review: an uncertain but arguable claim might degenerate into a meritless one.

The abusive tactics talked of in the review as indicative of SLAPPs include going after individuals, rather than the organisation publishing material, using intimidating or threatening language (where exaggerating or insinuating improper or implausible threats such as bankruptcy, prison, or high/specific legal costs are in their sights alongside excessive langauge). Similarly, threatening to expose embarrassing information (such as tax failures) on the part of SLAPP targets to embarrass them as part of a tactic in a SLAPP case, could be regarded as being complicit in blackmail. Labelling correspondence is without prejudice or private and confidential, where it is not, and issuing misleading threats to sue (where the intention is to convey imminence or instructions to sue where they do not exist for instance) might both be misleading.

This review was not a test of compliance with the SRA’s Warning Notice on SLAPPs (the review interviews predated that guidance). It has more of a flavour of a preliminary review, an extension of the conversation with SLAPPs that it seeks to have with practitioners. The calculation may be that there are enough practitioners not weighed down by the cynicism of “you have your principles” to make a conversation worth it or that other approaches are needed to really grapple with the nature and extent of the problem. In that vein, it is interesting to note that further work is coming. As well as the investigations in individual cases, and the broader lessons about the types of behaviour that amount to SLAPPs that may arise from those, a further thematic review promises to check compliance with their warning notice on SLAPPs, assess competence in the area, and the steps taken by firms to manage the risk of SLAPPs, and examine the relationships between law firms, reputation managers, PR companies and private investigators. The allegation made is that some law firms may be complicit in, or facilitators of, inappropriate surveillance, illegal evidence gathering, and harassment of public interest journalists. The conversation may yet get a lot tougher, if a robust methodology for exploring the problem can be found.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s