Solicitors fined £20,000 for sending intimidating letters

The Solicitors Disciplinary Tribunal fined the duo for sending intimidating letters accusing people of illegal filesharing
Tuesday 02 August 2011 by Catherine Baksi

Two London solicitors have been fined and suspended for three months by the Solicitors Disciplinary Tribunal for sending intimidating letters accusing people of illegal filesharing.

David Gore, a current partner at Davenport Lyons, and Brian Miller, a former partner at the same firm, were found guilty of six breaches of the Code of Conduct by the SDT in June.

At a hearing yesterday, both were fined £20,000, suspended from practicing for three months, and ordered to pay interim costs to the SRA of £150,000 in total, pending a detailed assessment.

The order has been suspended for 21 days to allow time for an appeal.

The breaches included allowing their independence to be compromised, not acting in the best interests of their clients, and acting in a away that was likely to diminish the trust the public placed in them or in the legal profession.

They related to conduct between 2006 and 2009 when, acting on behalf of various clients, they sent more than 6,000 letters to individuals accusing them of involvement in unlawful file sharing in breach of the Copyright Designs and Patents Act 1998.

The letters demanded compensation and costs to prevent the possibility of court action.

The SRA’s investigation followed a complaint from consumer group Which? that the pair had engaged in ‘bullying’ and ‘excessive’ conduct while acting on behalf of the copyright holders.

The SDT found that Miller and Gore became too concerned about making the scheme profitable for themselves and their firm, and their judgment became distorted, so that they pursued the scheme regardless of the impact on the people receiving the letters, and their own clients.

It said they had ‘used their position as solicitors to take or attempt to take unfair advantage of other persons, being recipients of letters of claim, either for their own or for the benefit of their clients’.

An SRA spokesman welcomed the SDT’s decision, which he said had followed a lengthy and complex investigation by members of SRA staff.

He said: ‘Some of those affected were vulnerable members of the public. There was significant distress. We are pleased that this matter has been brought to a conclusion and hope that it serves as a warning to others.’

‘Solicitors have a duty to act with integrity, independence and in the best interests of their clients. Solicitors who breach those duties can expect to face action by the SRA,’ he said.

A spokeswoman for Davenport Lyons said: ‘We consider the decision of the Solicitors’ Disciplinary Tribunal and sanctions imposed against David Gore and former partner, Brian Miller, are totally unjustified.

‘Davenport Lyons is a leading law firm with highly specialist intellectual property lawyers. We were instructed by the owners of intellectual property rights in music, film and games to help them curtail the significant losses they were suffering as a result of the unlawful file-sharing of their products. The steps we took on behalf of our clients were for the protection of their legitimate legal rights. We consider that we acted in our clients’ best interests at all times.

‘We wholeheartedly support David and Brian’s intention to appeal both the Solicitors’ Disciplinary Tribunal’s original decision and the resulting suspension and fine.’

Comments

View from a group

Although this is a welcome development, it no way goes to be an adequate punishment for the pain caused. £20,000 fine would be easily miniscule to the profit that was made from people scared of legal letters and paying up to make the situation “Go away”, Davenport like their successor ACS:LAW aimed the letter of claim at a cynical price of £500 – £750, the same cost to employ a lawer to fight the claim.

A Three month supension will allow them to be back in work for the New Year.

We look forward to seeing what the SDT does with the ACS:LAW/Andrew Crossley hearing later in the year, but after this rather dissapointing ruling we dont expect much.

Erm...

How do you know how much profit Davenport Lyons made from this? A three-month suspension, a fine and a costs order is anything but "miniscule" for solicitors who write letters of claim in accordance with their clients' instructions.

Offering to settle a claim at a level which encourages acceptance is hardly "cynical" - it's what good lawyers do every day.

From their own mouths

Andrew Crossley who took over the Speculative Invoicing from Davenport Lyons in May 2009 (even employing Brian Millers wife to do the paperwork!), stated on this very site I believe that he had recovered almost a million pounds, we know that he was on a 65% cut so that would equate to £650,000 after he had settled his other costs which did not include his 65%.

That was back in April 2010 as seen here http://bit.ly/bNtqRn

YOU state "Offering to settle a claim at a level which encourages acceptance is hardly "cynical" - it's what good lawyers do every day"

Well maybe but of course they were knowingly targetting people that they knew were innocent, this had long been suspected but has now been proven by the SRA investigation.

If I were to accuse you of something and ask for the same amount of money to settle as it would cost you to get a lawyer, that is NOT the right way of doing things for ANY Law firm.

I for one am thankful that the age of Copyright Trolls has drawn to a close in the UK. This was never about protecting copyright, but just making money off of innocent people,

Which category are you

You, I presume have a car and a house and a computer. I look forward to you giving me all these things free of charge or are you a "Copyright Troll", yourself. If you are so stupid that you do not understand concepts of ownership then I despair. Or is it that you think you are entitled to take things belonging to other people but you will not give other people your things. Or do you, like Proudhon, believe all property is theft?

Or are you simply a spoilt middle class child (lets face it the poor won't be paying the sums demanded) whose parents are so worried about CCJs and court cases and their effect on your precious future that they hnave "kicked up a stink".

Which category are you?

What breach?

Perhaps I have missed something in the Gazette stories (I have not actually read the detailed findings), but what duty have they breached?

I am in no way related to the firm and I can take the point of protecting vunerable members of the public, but at the end of the day those who received the letters were presumably acting unlawfully and were sent letters of claim by solicitors acting for their clients.

The article says that "Solicitors have a duty to act with integrity, independence and in the best interests of their clients" and I do not understand how a reasonable letter of claim sent in a legitimate claim at the request of the client goes against this or are we supposed to consider public policy now.

Does this now mean that defence solicitors can be hauled up in front of the SDT because they do not have integrity and so on because they are following their clients' reasonable instructions rather than following public opinion?

I think I must have missed something with this decision and if somebody can please explain to me I would be grateful.

These are the charges they were found guilty of

(1) Breach of rule 1.03 of the Solicitors Code of Conduct 2007: respondents allowed their independence to be compromised.

(2) Breach of rule 1.04: respondents did not act in the best interests of their clients.

(3) Breach of rule 1.06: respondents acted in a way that was likely to diminish the trust the public place in them or in the legal profession.

(4) Breach of rule 2.04(1): respondents entered into arrangements to receive contingency fees for work done in prosecuting or defending contentious proceedings before the courts of England and Wales except as permitted by statute or the common law.

(5) Breach of rule 3.01: respondents acted where there was a conflict of interest in circumstances not permitted under the rules, in particular because there was a conflict or significant risk that the respondents and/or their firm’s interests were in conflict with those of their clients.

(6) Breach of rule 10.01: respondents used their position as solicitors to take or attempt to take unfair advantage of other persons, being recipients of letters of claim either for their own benefit or for the benefit of their clients.

The Paramount Breach

You've missed the most important and paramount crime of all. The unsaaid crime.

"CAUSING POLITICAL EMBARRASSMENT TO THE SRA BY ANNOYING THE LSB AND THEREFORE THREATENING THE FUTURE LIVELIHOOD OF ALL SRA EMPLOYEES."

All of these "breaches" are

All of these "breaches" are of the "contrary to the good of the state" type of offence much beloved by unaccountable authority, most notably the USSR, but popular in this country of late.

They are offences easy to allege and impossible to defend. expect much more of this sort of thing when "outcome focused regulation" comes in.

In other words, totally arbitrary "regulation".

"...but at the end of the day

"...but at the end of the day those who received the letters were presumably acting unlawfully and were sent letters of claim by solicitors acting for their clients."

Sarah, I think that's the point for a start. It is perfectly clear that a good number of those who were sent these "threatening" letters had done nothing wrong. They were not filesharers. Rather, they were numpties who left their home wifi unprotected or inadequately protected. Accordingly, when people who were technologically inept received letters saying that they had done something wrong on the interwebs, and that, unless they settled for £750, the details of the naughty things they had been downloading would appear in public documents when they were sued.

The nature of these LBAs was that they were heavy-handed and aggressive in tone. That is not the function of legal correspondence. It has no more place in this type of litigation than it does in some of the ridiculous letters sent between firms in family cases or PI claims.

Threats may get money in but courtesy and decency, especially in a pre-action stage where the other side is without any representation, is unbecoming to any lawyer.

This decision is an absolute

This decision is an absolute disgrace.

If they do not win their appeal it will be a further disgrace-but as there isn't a proper appeal system in place for solicitors, no surprise. Probably a breach of human rights.

Did you attend the hearing?

Did you attend the hearing? Perhaps you would care to explain why the decision is a disgrace, in the light of the evidence presented by both sides at the hearing.

Because the SDT is

Because the SDT is notoriously biased, and will go with what is politically correct and expedient.

This was a case which had been raked over by the media and the outcome predetermined. To consider the matter objectively would have required more courage than is possessed by the SDT, and very likely the "appeal tribunal"-so called. How any tribunal can be properly regarded as such when its basic premise is that the original decision was correct is a mystery, but par for the course nowadays.

Thank you. That is a very

Thank you. That is a very cogent explanation argued on the basis of the facts of the case as presented at the hearing, which I assume you attended to be able to put forward such a view. Or perhaps you are relying on the 'facts' as set out by the media.

The SDT has a solicitor

The SDT has a solicitor majority, so if it is biased against the profession that would be rather odd. Perhaps you see bias, where others see robustness in protecting the image of the profession. Isn't there well known judicial dicta to the effect that every member of our profession should be trustworthy 'to the ends of the Earth'? How can this be maintained if the benefit of the doubt isn't always on the side of the public? As is happens, I don't think the SDT has been robust enough in the past - having come across cases of readmission of dishonest solicitors who repay the second chance with further acts of dishonesty. Perhaps you you read a cross section of SDT decisions (not just Gazette summaries) before commenting.

The profession as a whole

The profession as a whole invariably adopts a "holier than thou" attitude, those on the SDT even more so, and it is therefore not odd in the slightest that there is bias.

One might also have more sympathy with the "to the ends of the earth" comment if the judiciary applied it to itself-it most certainly does not. Why solicitors? Why not banks, politicians, if fact everybody? Are solicitors so important to society? They certainly get neither respect or good remuneration so that cannot be the case.

There quite simply should not be any benefit of any doubt-before a persons livelihood is destroyed there should be certainty, not to mention fairness. Fairness plays no part in the approach of the SDT. Indeed in all other walks of life the Human Rights Act applies-but not to solicitors.

Presumably those solicitors who were re-admitted after dishonesty had excellent grounds for re-admission-otherwise they would not have been re-admitted. I imagine these cases are extremely rare - but why should they not be given a further chance? That is the nature of justice in our society for most-why not solicitors?

My original view stands-and is re-inforced by your comments.

"holier than thou"

It is a question of right and wrong. What they did was wrong and brings the profession into disrepute. Defending bent solicitors who tried to bully people into settling should not be defended. Its a simple question of right and wrong.

Yes indeed! Defending your

Yes indeed!

Defending your clients rights on your clients instructions is entirely wrong.

Please publish your address so everyone can take your property-after all, you won't want to defend it.

Publish my address?

Please publish your name so you can stand up and be counted for defending this bent solicitor. Will you please tell the world your name and be counted for defending his actions?

Cat caught your tongue?

These people were "defending property rights" by making random accusations and were obsessed with screwing money out of people.

They had one motivation – greed. They used their knowledge of the law to try and force payment from people without that knowledge without having the courtesy to assess if they were guilty.

As the tribunal found, they were obsessed with feathering their own nest and sending demands to people who potentially had done nothing wrong.

Where is the justice in demanding money from someone on the basis that person has made an illegal download off a wi fi network that they didn't know could be secured?

If you buy a broadband package and someone uses that package to download music without your knowledge why should you face the full force of a legal letter, which many people would be terrified of receiving.

This was WRONG. It was immoral and corrupt and they got what was coming to them.

In answer to your question:-

Yes I want to protect my property.

BUT – I do NOT want compensation from an old granny you terrify into making a payment to me.

They were crooks and that is why they have been punished.

Well, I'm not the one saying

Well, I'm not the one saying people aren''t entitled to protect their rights now, am I?

You obviously would protect yours-why should others not?

The plain fact is that the downloads occurred-therefore the owner of those property rights are entitled to payment.

If there is defence then use it.

Law of the jungle

If that is the case then why not write to every individual in the UK. Get compo out of them that way:-

CROOKED AND CO

BUSINESS PLAN

“I calculate 0.02% of people, who are old and frail, will capitulate and be terrified into my demands for payment, with menaces. I will get my clients property back; it just may not be from the perpetrators of the ‘crime’ and of course, will make a very healthy margin into the bargain.

Of course, if there is defence, then the old lady may use it.”

......That is why they were fined and suspended.

THEY SENT 6,000 LETTERS AND WOULD NOT TAKE ONE CASE TO COURT!

So obviously they've been

So obviously they've been charged with fraud.

Oh no they haven't have they-because they were seeking payment for the rights their clients owned.

Not yet

I don't think they have, probably because people either threw the letters into the bin or complained and the 'cases' all collapsed. 6,000 letters and not one court appearance.

Not only were they very bad solicitors in the sense they did a crap job for their client and bullied people but they were also crap at making money too.

So no fraud charges.

Defending rights

If you will not fight a case in court you are not defending a clients rights by sending out clever menacing legal letters. You are bullying people to inflate your fee income.

If you have no case to bring to court - don't send the letter.

Many rights are protected by

Many rights are protected by sending letters rather than go to court-whats wrong with that?

Just because a case is not brought to court does not mean there isn't a case to answer.

Pathetic

Well you and the crook solicitor have your opinion. The tribunal, public opinion and myself have another opinion. Why are you so concerned to defend this crook? This never has been about defending property rights but a crooked business model that placed profit over basic right and wrong. This really is about simple justice. Clever solicitors should not send threatening letters to people who have done nothing wrong and expect them to be able to understand their rights. The tribunal made the right decision after a crooked solicitor wouldn't even take any case to court out of SIX THOUSAND letters.

But they did do something

But they did do something wrong, didn't they?

Thats the entire point. Someone has been "punished" for standing up for the rights of their client.

The decision to mete out such punishment looks as if it has been taken on the basis of the public outcry-fine if thats the way we want to go. But let's not pretend that it is other than pandering to emotion.

Lets re-introduce the death penalty, hang the Bulger killers, in fact do anything that the mob want. They'll come for you sooner or later.

Perspective

A solicitor should not send out threatening and intimidating letters unless they have evidence the person they are writing to has done what they claim they have done.

This bent solicitor had done just that.

He had come up with a business model that tried to elicit fixed fees for his client on the basis of sending 6,000 individuals threatening letters. There was no evidence these people had done anything wrong. It was about greed and that is why he has been punished.

If you have a situation where you have a street of electricity users and the electricity board finds out one user was not paying for what they used by illegally connecting to the grid and siphoning off power. A solicitor should tell a client that they need to establish who is taking the electricity. Not come up with a business model that makes money by writing to every user of electricity on the basis that one of them may have facilitated the theft.

He didn't take ONE case to court and sent 6,000 threatening letters, some to vulnerable people who had done nothing wrong.

Shame on him and his crooked firm. It isn’t a mob that did this but a impartial selection of his peers along with a majority of solicitors, I would think and hope.

The mob action was taken by this crooked greedy individual when he tried to rip innocent individuals off by sending his 6,000 threatening letters.

The Rule of Law

If you start making exceptions from the law for classes of people, in this case the file sharing children of the middle classes, you are really on the road to perdition.

This undermines the rule of law and before long other pressure groups will step up demanding exemptions from statute and common law.

Who is next for special kid glove treatment? Journalists who listened to voicemail? Politicians who cheat on expenses? Bankers who misold products?

I can assure you that two classes of people will not get special treatment. Workers at Tesco who are sacked for taking too much time off for being ill and solicitors and their families who face ruin because of SDT costs orders or costs arising from or relating to SRA interventions. Strangely enough the people most prominent in establishing the file sharing exemption to the law were a former head of legal at Tesco and those unaccountable police at the SRA. The only unaccountable police in this country.

From now on all solicitors must act as unpaid judges for their own clients. They must first decide if their client's proposed action will upset people, or more accurately upset powerful people and they must tell their own client to stop, if this is the effect of the proposed action.

I hope the judiciary realise that their role has been undermined by this action.

This is just dangerous. Solicitors are to show deference to the protected. Who will be protected next. The murdering son or daughter of a senior politician?

To think that we were once the envy of the world for our fair legal system. If we lose that reputation, we will lose more than just money. We will lose a reputation built over centuries. O Tempora, O Mores. How many of our judges, barristers and solicitors understand this phrase?

Did you attend the hearing?

Did you attend the hearing? Were 'classes of people' shown to be involved? Was any evidence presented that the 'classes of people' (there were 6000 letters sent) were children, middle class? Was any credible evidence presented that ANY of the recipients of the letters before claiim had shared any information that infringed copyright? Were any cases taken to court to test the evidence? What has Tesco got to do with it...oh yes, Which.

Obviously you did attend the

Obviously you did attend the hearing.

Do let us know the answers to the questions you pose.

Is it obvious that I attended

Is it obvious that I attended the hearing? I didn't. My questions are intended to elicit facts from the person who posted under Rule of Law, to support the statements that person made. As far as I am aware, the SDT have not yet published a record of the hearing. Perhaps Rule of Law is in possession of facts which I am not.

Rule of law

Rule of law is exactly what the public have come to expect and hate about solicitors. Rule of law is trying to justify solicitors frightening ordinary people to maximise fee income. This is not what legal professionals should do.

This surely is a simple question of right and wrong. Clearly it is wrong to do what they did and that is why they have been suspended!

Rule of law just typifies a profession that likes to lecture society and is good at being high minded but has no facts to back anything they say up. More worrying is the desire to fight the corner of a bent solicitor who has brought this profession into disrepute.

FACTs

You fail to understand the argument here. It is not the solicitors who make the law. It is parliament and the courts. File sharing is currently unlawful where it amounts to breach of copyright. Consequently, a solicitor who sends a letter to someone accused of file sharing, by a a client, is doing his job, not acting criminally, as the word "bent" suggests

Your ignorance is revealed by the fact that you do not understand that all "bent" solicitors are struck off because they are dishonest. Therefore, these two were not "bent", as they were suspended and not struck off.

All they are guilty of is offending against a utopian vision. The vision that all items on the internet should be free. A vision long abandoned by most. A vision as unrealistic as that of Soviet collectivisation.

I hope that one of the most effective policing bodies in this country, The Federation Against Copyright Theft (FACT), attempts to intervene in the appeal launched by these two solicitors.

FACT

I don't see how FACT could intervene in any appeal. Is it even certain that there will be an appeal? The Administrative Court is usually very reluctant to overturn decisions of the SDT, so an appeal might not achieve much more than an increase in the costs payable to the SRA.

What is remarkable about this case is that the solicitors were adopting the same approach as that adopted in the Digital Economy Act 2010, which also works on the assumption that the subscriber to the internet connection is the person who committed the unlawful file sharing using that connection. The solicitors cannot sensibly be criticised for adopting the same assumption as that adopted in the DEA. So, what exactly did they do wrong? The answer appears to be that they wrote some letters which the SDT thought were too strong. Given that there was no finding of dishonesty or bad faith, it is difficult to see how writing letters which were too strong merits a three-month suspension, a £20,000 fine and a six-figure costs order.

A much more constructive (and cost-effective) way to have dealt with this would have been for the SRA to issue guidance to those members of the profession who are instructed to deal with claims of unlawful file sharing. After this decision of the SDT, no solicitor is going to want to go near such work. That may suit some sections of the public, but it is not the role of the SDT to make decisions which prevent the victims of alleged copyright infringement from taking steps to obtain redress.

Regrettably there is nothing

Regrettably there is nothing remarkable at all about the SRA and SDT acting like the Star Chamber.

They are entirely politically driven organisations whose purpose is the "politically correct" destruction of the profession.