Spot checks by the Solicitors Regulation Authority have exposed widespread ignorance among solicitors who advise in defamation and privacy cases of the obligation to report on potentially abusive litigation. Law firms must do more to counter strategic lawsuits against public participation (SLAPPs), the regulator said today.
The call came as the SRA published a thematic review of conduct in disputes. This contains checklists that firms can use to ensure they are carrying out litigation properly.
The SRA issued a warning to solicitors on SLAPPs last November, as public scrutiny of allegedly abusive litigation intensified in the wake of Russia’s invasion of Ukraine. Chief executive Paul Philip told a Lords committee last month that the regulator is currently investigating 40 suspected SLAPP cases.
As part of its thematic review, but before last November’s warning, the regulator visited 25 firms in total on both the claimant and defendant side which advise on reputation management. Fifty files were reviewed.
Eleven heads of department with overall responsibility for reputation management were unaware of SRA guidance on reporting and notification obligations relating to potential misconduct in disputes. Only six fee earners in total were aware of the guidance, and some fee earners even thought a SLAPP could only be brought against an individual.
In three cases, which the SRA is investigating further, a firm had identified potentially abusive litigation by another firm but had not reported it to the SRA.
Some firms misunderstood when it would be appropriate to make a report, while several departmental heads spoke of an ‘increasing trend’ of firms threatening to make a report to the SRA alleging misconduct when there was no basis to do so.
Most firms did not have any formal policies or procedures to deal with litigation or reputation matters. This is not obligatory, but the SRA regards such policies as an ‘important tool’ in the fight against SLAPPs.
In a follow-up review, the SRA said it will look at issues arising from its open investigations; steps firms are taking to prevent the possible illegitimate funding of SLAPPs cases; and relationships with PR companies and private investigators.
Philip said: ‘SLAPPs are a threat to free speech and the rule of the law. Solicitors should act fearlessly in their client’s interest when bringing legitimate claims. They are, however, officers of the court. They must act with integrity and should never abuse the litigation process.
‘Most solicitors take their duties seriously. Yet this review shows that some firms need to do more. Where we find evidence of misconduct, we will take strong action.'
A Law Society spokesperson said: 'We welcome the SRA’s efforts to review how law firms manage risk in relation to SLAPPs. It is good to see the SRA understands the seriousness of this issue, especially if these lawsuits suppress free speech or restrict access to justice. The regulator’s review will be a valuable resource in supporting solicitors to ensure they maintain the highest professional standards and avoid improper behaviour.'
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