The Solicitors Regulation Authority should be wary of dictating to firms how they conduct litigation and which clients they choose to take on, a leading regulatory lawyer has said.

Iain Miller, partner with London firm Kingsley Napley, said there was a danger in the SRA referring to a solicitor’s duty as being to ‘uphold the public interest’ when this was such a broad and unqualified term.

Speaking at the Law Society’s risk and compliance conference today, Miller said the public interest served by lawyers is different to that of healthcare workers or other professionals.

‘We all support society but in different ways,’ he said. ‘Once this is understood it becomes much easier to understand what we can and cannot do for our clients. For example, it would be wrong to draft a non-disclosure agreement that inhibited the work of the courts or regulators. It would also be wrong to use our skills as lawyers to advance an unmeritorious claim in correspondence in order to achieve what no court would ever order. 

‘However, these issues are very fact dependant,' he said. 'This is particularly because we operate in a common law adversarial system. We are entitled to advance claims on behalf of our clients which are arguable, but think they may not succeed.’

Iain Miller left

Miller: Lawyers are entitled to advance claims which may not succeed

Source: Michael Cross

Miller cautioned against the SRA becoming ‘too aggressive’ in the area of litigation strategy, saying this would inhibit the bringing of claims and undermine the administration of justice.

The SRA has come under pressure from lobby groups and academics to do more to address certain types of abusive litigation, particularly those dubbed strategic lawsuits against public participation (SLAPPs).

Paul Philip, SRA chief executive, has said that solicitors must act with integrity and not abuse the litigation process, but equally they should ‘act fearlessly in their client’s interest when bringing legitimate claims.’

Miller told the conference that all members of society were entitled to legal advice ‘in any circumstances’, no matter what societal reservations there may be about, for example, a client’s environmental impact.

‘That does not of course mean a law firm cannot choose whom it acts for,’ added Miller. ‘This may be for reputational reasons, competence reasons or because they fundamentally do not like or agree with the client. However, none of this is a regulatory issue and we need as a profession to be clear about that. So does the SRA.’