Last week’s High Court ruling that the Solicitors Regulation Authority does not have the power to requisition material subject to legal professional privilege (LPP) has been described as a ‘huge blow’ to the regulator. But what exactly does this mean?
It is important to step back and look at the bigger picture. The judgment does this by clearly and compellingly reviewing the authorities and academic literature. The High Court rightly observed that LPP is a critical safeguard established for the interests of justice and operates in the public interest. It carefully reviewed case law from England and Wales, and applied insightful Privy Council decisions to conclude that protecting the solicitor/client LPP safeguard is fundamental.
In an era of geopolitical turmoil, the result is, to me, unsurprising. LPP must be approached with its fundamental interest-in-justice aspect in clear focus. Protecting solicitor-client confidentiality is a cornerstone of the rule of law. This case should not be viewed as being about the SRA or a law firm, but rather the certainty of LPP. The privilege safeguard extends beyond the parties – it is fundamental to our democracy and the rule of law.
The statutory exceptions to LPP are tightly drawn. This reflects the crucial nature of LPP. In this context, the SRA’s approach runs into difficulty because the section at the heart of this case (section 44B of the Solicitors Act 1974) does not expressly include or seek to override LPP. In investigations, it has sometimes been necessary to ask clients to share material or ask the SRA to clarify what it seeks to enable the exclusion of privileged material. This case brought to the court an issue that specialist advisers to law firms under investigation have grappled with for many years.
Where the SRA has, in light of this ruling, misapplied privilege and obtained information unlawfully, I fully expect defendant law firms and individual solicitors to challenge any investigation and any outcomes imposed. The judgment highlights instances where the SRA has asked the Solicitors Disciplinary Tribunal for anonymisation in decisions due to privilege. Inevitably, the SRA will be expected to address any misapplication in its own approach.
For law firms and solicitors facing SRA scrutiny, the decision reaffirms that checking the lawful basis for any disclosure remains key. In a couple of recent investigations, we have invited the SRA to narrow its requests and acknowledge this issue; material can then be eliminated to protect privilege and an effective investigation is possible.
Most law firms want to share what material they can to exonerate themselves or their partners/employees. However, when an issue arises that engages LPP and it cannot be narrowed, the decision must be the client’s and it is not for the law firm to make.
Privilege is protected using statutory exemptions when a Crown court judge makes a production order against a law firm under the Proceeds of Crime Act 2002. This invites the question: if law enforcement can respect LPP in complex cases, why would parliament grant the SRA a wider power than the one that works well elsewhere?
Before law, I worked in a BBC newsroom for 18 months. A free press/media is absolutely vital; undermining legal professional privilege is unnecessary and will compromise the rule of law and the wider investigative aims of a free press. The pressure on the SRA to look behind privilege largely comes from anti-SLAPP campaigners and groups, drawing the regulator away from its core focus on misconduct investigations and into murkier territory involving campaigners, politicians, and subjective opinions about how law firms ought to act upon instructions.
Undermining privilege might suit one campaign group but not another. Imagine if, after the 2029 general election, a populist government is in power from a party formed in 2027 to clean up politics. Having seen the SRA granted this power by parliament before the election, it now wishes to eliminate all judicial reviews challenging its decisions and curtail all press investigations into anything the ruling party does.
It could pass legislation to remove privilege, citing that, like the SRA, it needs to ensure law firms are not advising on challenges to its agenda. No judicial reviews. No free press. This is a dangerous and slippery slope. The rule of law depends on privilege.
LPP is fundamental to a free and democratic society. Any regulator should ask sharper questions focused on the actions in question, not on undermining privilege; doing so risks the very safeguards against abuse.
Good investigations of misconduct and journalism matter hugely to society. Challenges to professionals are already many and varied, and media law cases without merit can be struck out. The SRA might be aggrieved, but the courts and parliament should stand firm. The balance is right.
For example, if the SRA is investigating a SLAPP allegation from an investigative journalist whose blog publisher is being threatened with a financially ruinous defamation claim, and if the SRA cannot access the privileged material, then it needs to investigate differently. How? The SRA could introduce a new standard in the Code of Conduct for Solicitors requiring those acting in defamation, privacy and injunction cases to include any evidence on which their client relies in any letter of claim. Then the SRA can assess (themselves or through an expert witness): do the allegations made appear on a reasonable and arguable basis to meet the required standards set out in the revised SRA Code of Conduct or the SLAPPS Warning Notice? What is professionally reasonable is the key, not a campaigner’s subjective opinion.
This issue needs a different approach, not the undermining of privilege.
Paul Bennett is a partner at Bennett Briegal LLP. He specialises in legal regulation, compliance and partnership
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