What if our critics are right?

We should always reflect on what our critics say, or we will never improve. After reflection, we can consider whether and how to change.

Our critics have not been silent recently. I think every solicitor should read the transcript of the recent evidence session before the House of Commons Foreign Affairs Committee. The topic happened to be SLAPPs (strategic litigation against public participation, or intimidatory litigation intended to silence and bankrupt critics). Although only a tiny proportion of us will ever be involved on one side or the other of SLAPP litigation, the evidence provides an insight into what its victims consider to be the way that lawyers justify their behaviour.

The main complaint raised was that lawyers say ‘everyone has a right to representation’. The critics found this hard to accept.

I think it is not legally correct to say that everyone has a right to representation - depending, of course, on what ‘right’ and ‘representation’ mean. I take ‘right’ here to mean something that is recognised in law and enforceable, and ‘representation’ to mean representation by a lawyer.

Of course, everyone has a right to a fair and public hearing (Article 6 of the European Convention of Human Rights (ECHR)). But that does not mean that everyone has a right to a lawyer in all circumstances.

It is true that there is a right to a lawyer in criminal cases. That is declared in Article 6 paragraph 3 (c) of the ECHR:

Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require

But there is no equivalent right in civil cases, as the European Court of Human Rights (ECtHR) has pointed out on several occasions.

Interestingly, two of the leading cases in support of this notion are of UK origin. Both also arise out of defamation, since legal aid was not available – and inability to pay for a lawyer is obviously one of the ways in which the right to a lawyer comes up for decision by the courts.

One of the two instances is the famous McLibel case brought by McDonald’s against two campaigners (Steel and Morris v. the United Kingdom), which would doubtless be considered a SLAPP case today. The other is a libel case brought by the athlete Linford Christie against a journalist (McVicar v. the United Kingdom).

In McVicar’s case, there was found to be no breach of Article 6, but in Steel and Morris’s case, the court said that ‘the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald's.’

In other words, there is no absolute right to a lawyer in civil cases - McVicar lost, Steel and Morris won - and whether the right can be enforced will depend on a list of circumstances, which the ECtHR has defined. These cases concerned defendants to defamation. The consequence must be that those who bring defamation proceedings do not have the right to a lawyer, either.

That does not mean that solicitors should not act for wealthy people who wish to protect their reputations. It just means that the activity should not clothed in the language of rights of representation. Yes, there is a right to protect a reputation, also covered by the ECHR, which is a balance between Article 8 (right to private and family life) and Article 10 (right to freedom of expression). Criteria from the ECtHR explain how that balance should be managed. When speaking about SLAPPs, those are the rights involved.

Our critics also say that we speak of rights but not of the abuse of rights. For instance, if a solicitor suspects that a client is using the right to reputation (‘using’ because the matter is minor, or has not been complained of before, despite previous publication), so as to crush a defendant’s right to freedom of expression, what should the solicitor do?

Is it for the solicitor to decide where the balance of public interest lies? Should the matter be left to the market, meaning that some solicitors will take on the client, but others will not? On this matter, the SRA has already issued guidance, stressing the importance of solicitors’ independence from the client and the need sometimes to say ‘no’, even if the action is lawful.

Some doubt that the Law Society has a role in this matter. But maybe the most useful action it could undertake is to elucidate what rights are involved, and how they have been balanced by the courts and guidance.

Jonathan Goldsmith is Law Society Council member for EU & international and a former secretary general of the Council of Bars and Law Societies of Europe. 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