The Solicitors Regulation Authority would be ‘seriously limited’ in its power to properly investigate misconduct if it were not able to examine material subject to legal professional privilege, the High Court heard today.
On the second day of a hearing over whether the SRA has power under section 44B of the Solicitors Act 1974 to require a solicitor to provide it with material subject to LPP, Tamara Oppenheimer KC, for the regulator, told the court the that power granted to the SRA under section 44B ‘is a confined one’ with a ‘limited purpose’ of investigating a regulated person.
She added: ‘Section 44B does not provide the SRA with the power to use client privilege for any purpose. The SRA is not able to invoke the power to use client’s privilege against that client…nor does it give the SRA power to use material for any collateral purpose.’
Oppenheimer said there are ‘inherent safeguards’. The SRA ‘cannot effectively regulate the solicitor’s profession without that power’ under s44B and would be ‘seriously limited’ in its ability to investigate allegations of misconduct if it were not able to look at privileged documents, Oppenheimer added.
‘It is not correct to characterise the SRA’s case as a regulatory power somehow trumping legal professional privilege,' she said. 'It is not the case that where this power is exercised that client’s privilege is overridden. It is not the case that the client’s privilege is destroyed or lost.’
She said that the regulator ‘accepts the absolute nature of LPP and takes its responsibility of protecting client privilege during investigations and subsequent proceedings very seriously’. However, regulating the profession is also a part of the administration of justice. She added: ‘The administration of justice may be obstructed when either of these aspects are compromised.’
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The court heard a client being able to speak ‘candidly’ to a solicitor was of ‘little use if the lawyer is not subject to effective regulation’.
Oppenheimer acknowledged as common ground Carter-Ruck's contention that the 1974 act contains is no express power to seek privileged communication. 'We are talking about an implied power,’ she said.
In written submissions, she added: ‘Statute has not created a regulator which is supposed to be responsive only to client complaints or able to investigate only if a client or former client consents.’
Oppenheimer said the wording used in relation to the SRA’s powers for limited interventions was ‘copied’ in s44B. ‘This shows parliament taking the limited intervention power and making it available to be exercised on an investigatory basis as well.’
In written submissions, the SRA added: ‘Both the rules of LPP and the rules dealing with the regulation of the solicitors’ profession are concerned with the same policy and are complementary manifestations of the same societal need for effective and reliable legal advice and representation. The sound administration of justice underpins both policy rationales.
‘A significant proportion of solicitors’ work will be subject either to legal advice privilege or litigation privilege. Even where the misconduct relates to matters which are not privileged, such as witness evidence filed in proceedings or correspondence sent to opponents or counterparties, it will often be necessary to consider a solicitor’s instructions and/or advice to the client to ascertain the solicitor’s state of mind (either in respect of knowledge or intention).’
The court heard that a person subject to a s44B notice ‘would have the opportunity’ to argue points of alleged safeguarding issues.
Oppenheimer said: ‘We accept a case where the client interest conflict would be a difficulty. The point about the SRA’s use of documents is they are being used against the solicitor. They should not be used in a way contrary to client interests. If there was such a case then these sorts of issues would have to be worked out how that power could be exercised. The way s44B, and I tried to express it as a limited power, was for the purpose of investigating allegations against solicitors. It is not supposed to be used against the client.’
The trial continues.
