The announcement by the SRA's general counsel last week that the SRA is looking for statutory designation under the whistleblower law, the Public Interest Disclosure Act 1998 (PIDA), to encourage reporting of SLAPPs, could provoke a number of responses.
The most mean-spirited would be that this is another attractive passing bandwagon for the SRA. SLAPPs have been well-known for years. I first wrote about them over four years ago, and I was hardly the first – there had long been complaints. But because the government has finally taken notice this year, the SRA has itself discovered SLAPPs, and we are told that 29 cases are now being investigated, relating to 17 firms. Only recently, though, has the SRA issued a SLAPPs warning. Now it wants to be recognised as an official body to which a whistleblowing disclosure can be made.
The opposite reaction is that it should not be a surprise that the SRA wants to be a prescribed body under PIDA. Other professional regulators in the area of health are already listed, such as those relating to doctors, dentists, optometrists and chiropractors. Of course ‘the health or safety of any individual’ is one of the grounds under PIDA for a qualifying disclosure. But so is a miscarriage of justice and a failure to comply with any legal obligation, which I assume are the grounds under which the SRA feels it may qualify.
The SRA has long encouraged whistleblowing. There is a page on its website dedicated to the topic. It urges people to come forward, even if late, even if the whistleblower may be investigated as part of the steps that the SRA may take.
The dangers of coming forward are well-illustrated by a widely reported case from a few years ago where a trainee solicitor felt obliged by her seniors to raise bills for work not carried out, which she failed to report initially, and to falsify and backdate letters forming part of a file to be sent to the Legal Ombudsman after a client had complained. The latter was found to be dishonesty, and she was struck off. She reported on the firm only once she had left it, and no longer felt at personal risk. The SRA washed its hands of the tribunal’s strike-off decision, refused to appeal it, and said that it fell within the range of reasonable decisions that the tribunal could reach.
It is for this reason that the experienced practitioner speakers at a whistleblowing seminar last week all said that their first advice to whistleblowers is not to blow the whistle, because of the grave consequences which may follow for the whistleblower (despite the protections afforded by PIDA, and by the EU’s equivalent, the 2019 whistleblowing directive 2019/1937, and other national legislation). Obviously, the SRA imposes its own reporting obligations, but it is rare that a whistleblower escapes scot-free from either stress or cost. One notable example is the whistleblower in the Panama Papers case, whose identity is still not known.
The Law Society has given advice to solicitors on whistleblowing, published only a few months ago.
What is particularly valuable about the Law Society advice is that it makes clear that whistleblowing is not just a practice area on which a law firm might wish to advise a client. It also applies to law firms as businesses and employers, too, which is the focus of the advice. And there is a special quality – of course! – to its application to lawyers and law firms. That is because legal professional privilege receives a special mention in PIDA:
‘A disclosure of information in respect of which a claim to legal professional privilege … could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.’
In other words, whistleblowing protections will not usually cover clients’ information and actions. There is a big exception to this, as every solicitor knows: we are obliged to tip off the authorities if we are aware of a suspicious transaction in respect of money laundering or terrorist financing. For the rest, clients’ secrets should remain safe with us.
Whistleblowing within law firms will therefore usually be in respect of the actions of the people working within the firm, not the clients. However, there is another sector-specific caveat: as the Law Society note says, PIDA with its protections covers employees such as workers, contractors, trainees, agency staff and home workers, as well as members of LLPs, but it is not clear whether partners of traditional partnerships are covered, because of their special status.
There may therefore be an interesting PIDA case in the future if a partner blows the whistle to the SRA on another partner in the law firm, who is following specific client instructions in participating in aggressive, maybe abusive, litigation.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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