Most Lawfirms Ignorant of Guidance to Ensure Lawfare Disputes are ‘Balanced’: Regulator (1)

–There can be no climate justice without a fair legal system

By Mathew Carr

Feb. 16, 2023 — LONDON — Four fifths of UK lawfirms are ignorant of regulatory guidance that requires them to ensure the judicial-dispute-resolution process is “balanced” — that means one party should not be “outgunned” by the other. There has been rise in lawfare or SLAPPs (Strategic Lawfare Against Public Participation or strategic lawfare to prevent journalistic scrutiny).

“Solicitors are not simply ‘hired guns’. That means they should not bring cases which are not properly arguable, bring excessive or oppressive proceedings, or act in a way which could mislead or take advantage of others during proceedings. Managing potential conflicts is also an essential element of maintaining legal professional ethics,” the Solicitors Regulation Authority found

Guardian report here.

Here is what the Solicitors Regulation Authority (SRA) found after interviewing 25 important lawfirms:

“We have issued the following specific guidance on conduct in disputes:

SRA conduct in disputes [/solicitors/guidance/conduct-disputes/] (see bottom)

SRA balancing duties in litigation [/sra/research-publications/balancing-duties-litigation/]

and a warning notice on SLAPPs [/solicitors/guidance/slapps-warning-notice/] (which was published after our thematic visits).

We asked Heads of Department if they were aware of our guidance in this area.

Disappointingly, just over half (14) were aware of our conduct in disputes guidance (published as recently as March 2022) and only five [of 25] of our earlier 2018 guidance on balancing duties in litigation.

Where firms and fee earners were not aware of our guidance, we reminded them of the importance of reading and understanding them and bringing them to the attention of all fee earners.”

Source – SLAPP guidance from this week. See below.

The need for balance (see 2018 guidance below)

We have also seen a steady increase in reports
of solicitors misleading the courts.
These have
risen more than 50 percent in the last five years,
which might be because of better reporting.
What has not changed is the fact that although
solicitors must advance their clients’ cases, they
are not ’hired guns’ whose only duty is to that
client. They also owe duties to the courts, third
parties and to the public interest.

If they don’t balance those interests, these are the risks they run:

Improper or abusive
litigation, which includes:

  • predatory litigation
  • predatory litigation involving clients
  • abuse of the process
  • taking unfair advantage
  • misleading the court
  • excessive or aggressive litigation
  • conducting knowingly unwinnable cases.

SRA SLAPP report

SRA Balancing Guidance

SRA Litigation Conduct Guidance

March 2022

dangerous crime safety security
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(Corrected: this headline was so astonishing I got it wrong for the first few minutes of publication. Apologies for the confusion. The author is engaged in an almost three-year litigation with my former employer Bloomberg LP)

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