Conduct in disputes thematic review
Updated 17 November 2023
Solicitors play an important role in making sure clients obtain good quality advice and legal representation to resolve disputes, with or without the need for formal litigation.
As officers of the court, we expect solicitors to conduct themselves in a way which protects the public interest and helps the legal system work for all. Bringing cases which are an abuse of the litigation process or using improper or abusive litigation techniques can harm clients and other parties and undermine trust in the legal profession. We have already issued guidance on conduct in disputes to all firms and individuals we regulate who give dispute resolution and pre-action advice.
Solicitors are not simply 'hired guns'. That means they should not bring cases which are not properly arguable, bring excessive or oppressive proceedings, or act in a way which could mislead or take advantage of others during proceedings. Managing potential conflicts is also an essential element of maintaining legal professional ethics.
We issued a warning notice about a particular type of abusive litigation, known as strategic lawsuits against public participation (SLAPPs). These cases typically centre around privacy and defamation laws where an individual's reputation is under scrutiny. They often involve wealthy individuals or public figures threatening journalists with legal proceedings to discourage public discourse or action.
SLAPPs have come under significant scrutiny following the conflict in Ukraine and government sanctions on Russia, with significant concerns being raised about solicitors making meritless claims on behalf of oligarchs to stifle public discourse about corruption or money laundering. Prior to the conflict in Ukraine, we received very few reports about SLAPPs but have seen a significant increase since. At the time of writing, we had around 40 open investigations into concerns around SLAPPs.
We will act where we see serious breaches of our Principles and Codes of Conduct. Solicitors play an important role in reporting matters which they believe are capable of amounting to a serious breach of our rules. This is especially important with SLAPPs, where the purpose of legal threats is often to silence critics or pressure supposedly weaker parties to settle before reaching court, resulting in a fear of speaking out.
What we did
We carried out this thematic review to better understand the practices and litigation techniques used by firms who act in privacy and defamation matters and provide reputation management services. We also wanted to assess how well the risks of abusive litigation were understood, identified, and prevented by firms and solicitors.
Our review looked at four main areas - knowledge and understanding of SLAPPs, how firms and solicitors manage risks in handling disputes, whether concerns are reported to us, and the continuing competence of those providing dispute resolution services.
This report sets out our findings and highlights examples of good practice we found. We have also included a checklist at the end of each section, together with actions firms must and must not take. These checklists and actions will help firms reflect on their own practice, meet our regulatory requirements and maintain high professional standards.
There are also links to useful information and other resources at the end of this report.
Dispute resolution solicitors provide legal advice in a range of different areas. For example, they might provide advice in commercial disputes, property disagreements or employment matters. While most litigation will follow a similar process, each area of law will present its own challenges.
Given the concerns around SLAPPs, and for consistency, we decided to only visit firms who provide legal advice on reputation management matters (typically matters relating to defamation, libel, or privacy). We wanted to hear a range of views. Therefore we visited both claimant and defendant firms.
However, we did not visit firms where we currently were investigating about the possible use of SLAPPs or abusive litigation. We do plan to include such firms in our future reviews of this areas, once these investigations have concluded.
We visited 25 firms. The visits took place between September 2022 and November 2022, but before we issued our warning notice on SLAPPs on 28 November 2022. At each firm, we spoke with the person with overall responsibility for reputation management matters (referred to in this report as the Head of Department) and reviewed their litigation policies and procedures. This allowed us to better understand the approach taken by the firm and how it sought to meet its professional obligations. In total, we spoke to 25 Heads of Department.
We also spoke with a more junior fee earner at all but one firm (24 in total) and reviewed two closed files in relation to reputation management matters. We therefore reviewed 50 files in total.
Given the number of firms we saw and files we examined - alongside the fact we did not visit firms who are currently being investigated about this issue - our thematic review is a snapshot of the approach of a limited number of firms. The review enables us to identify themes and areas of concern. The review did not extend beyond law firms we regulate and we continue to engage with external stakeholders - for example thinktanks, representative groups, campaigners and journalists - to make sure we understand their insights. We continue to encourage the reporting of SLAPPs to us.
Strategic Lawsuits against Public Participation (SLAPPs)
SLAPPs are an example of abusive litigation, and solicitors need to make sure they are fully up to date about the risks they pose - both so they can avoid bringing a SLAPP and report them if they see other firms using them.
- Some firms raised examples of cases they thought might amount to a SLAPP. We are looking into these to see whether we need to take any action. We reminded firms of their obligation to report potential misconduct by another law firm. We did not find evidence of SLAPPs in our file reviews.
- Many fee earners demonstrated they had a good general understanding of SLAPPs. However, we were concerned that knowledge and training did vary - for example, some fee earners thought that a SLAPP could only be bought against an individual.
- There were differing opinions on whether SLAPPs were a live issue, which is concerning given the increasing level of scrutiny on this matter. Nevertheless, there was an acknowledgement by all fee earners of the need to safeguard against SLAPPs.
Managing the risks in disputes
There is room for improvement in how firms and solicitors are managing risks in handling disputes.
- Despite firms acknowledging that there were potential risks associated with conducting litigation, most did not have any formal policies and procedures in place on how to deal with litigation or reputation management matters. Although firms are not obliged to have policies and procedures in place,they are an important tool to make sure the firm has a clear record of key issues and concerns and all staff understand their obligations and the specific risks that can arise in this area.
- While we did not see the terms 'strictly private and confidential', 'not for publication' and 'without prejudice' being used inappropriately, we reminded fee earners that they must have proper reasons for labelling correspondence in these ways.
- Eleven Heads of Department and six fee earners also told us that there were occasions where the firm had to tell a claimant they could not pursue litigation because it was abusive or unfair.
Solicitors and firms should take further steps to make themselves aware of their reporting obligations.
- Most Heads of Department said they had never needed to report a firm or individual to us for their conduct during litigation. Three Heads of Department told us that they didn't make a report where conduct might have been an issue. We are looking into these to see whether we need to take any action.
- We were concerned that 11 Heads of Department we interviewed were not aware of our guidance on reporting and notification obligations, with a further two unsure about whether they had seen it. Disappointingly, only six fee earners were aware of our guidance in this area.
- Some firms also misunderstood when it would be appropriate to make a report to us and in particular the factors they need take into account when considering whether to do so.
- Several Heads of Department told us of an increasing trend of firms threatening to make a report to the SRA for alleged breaches of our Codes of Conduct where there was no basis to do so. Where the threat to make a report to us was intended to inappropriately influence the course of a matter, we regard this as an abusive litigation tactic and will take such circumstances seriously.
Training and competence
There is room for improvement in this area. Solicitors should make sure they are aware of our guidance on conduct in disputes so they are meeting the high professional standards public confidence requires. We will have regard to our guidance when exercising our regulatory functions.
- Eight fee earners said they had not received any training on how to conduct fair and appropriate litigation. We expect firms to do more and make sure fee earners are aware of their regulatory obligations when conducting litigation.
- Disappointingly, not all Heads of Department and fee earners were aware of our guidance on conduct in disputes and balancing duties in litigation.
- Overall, we did not find any issues with the wider competence of fee earners when handling dispute resolution work.
As a result of our findings, we will:
- promote our findings with firms who undertake litigation
- continue promoting our current resources, warning notices and guidance to the profession
- raise awareness of the standards we expect of solicitors with those working outside the profession, for example journalists
- undertake a further thematic review to:
- specifically check compliance with our warning notice on SLAPPs (issued after our visits to firms took place)
- assess competence in this area and whether firms have, since publication of this thematic review, provided training on SLAPPs and conduct in disputes
- revisit some of the firms in this review alongside others where we have concluded investigations into SLAPP complaints
- examine the steps taken by firms to prevent the possible illegitimate funding of SLAPP cases
- examine the relationships between law firms, 'reputation managers', PR companies and private investigators
- focus on issues and themes arising from our open investigations into concerns around SLAPPs.
Why this is important
A SLAPP is a type of abusive litigation. The term is now commonly used to describe the misuse of the legal system, and the bringing or threatening of proceedings, to discourage or prevent public criticism or action. For example, cases in which the underlying intention is to stifle the reporting or the investigation of serious concerns of corruption or money laundering by using improper and abusive litigation tactics.
Claims of defamation or invasion of privacy are the causes of action most associated with SLAPPs, but other causes of action (such as breach of confidence) could also be used for this purpose. However, proceedings in these cases are rarely issued or they rarely come before a judge. This can make it difficult to understand the scale of the problem, as well as to scrutinise inappropriate conduct.
As officers of the court, solicitors play a crucial role in making sure they do not facilitate the bringing of a SLAPP and that they report any concerns to us. Powerful and wealthy individuals or corporations should not be allowed to use their position to bring spurious claims or try to browbeat an opponent.
Preventing SLAPPs is also important to make sure that the reporting or publication of matters in the public interest continues and trust in the legal profession is not undermined.
What we expect
Saying no to a wealthy or powerful client can be difficult. However, we expect solicitors to act in a way which upholds our Principles or, as one Head of Department said to us, 'I can't just do something because my client said so'.
Solicitors must comply with our Principles and in particular:
- Principle 1 - act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice.
- Principle 2 - act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons.
- Principle 3 - act with independence.
- Principle 4 - act with honesty.
- Principle 5 - act with integrity.
Solicitors should not put forward meritless or legally flawed arguments just to keep their client happy. To do so risks facilitating the abuse of our legal system by those clients who want to silence their critics. For example, solicitors must not allow a client to knowingly mislead the court or make meritless claims. Solicitors should also not place undue pressure on other parties, such as making aggressive or intimidating threats when corresponding with their opponent, especially if they are unrepresented.
Solicitors should also make sure they are familiar with our recently updated conduct in disputes guidance and specific warning notice about SLAPPs. We will have regard to these when exercising our regulatory functions.
We are concerned when those we regulate breach their professional obligations as set out in our Codes of Conduct. A matter does not have to amount to a SLAPP to breach a solicitor's professional obligations. We will be concerned if a solicitor or firm takes on instructions to bring, or threaten to bring, proceedings which could amount to a SLAPP or otherwise breaches our Principles or Codes of Conduct, for example because the claim is without merit or abusive litigation tactics are used.
What we found
All fee earners had a good general understanding of what we meant by the term SLAPP. Notwithstanding, most told us that they would appreciate more clarity around what constitutes a SLAPP and a standard definition. Fee earners appreciated the need to safeguard against bringing these types of claims because they pose a threat to freedom of speech.
For most, their awareness of SLAPPs had come from recent press coverage. Worryingly, this had then led some fee earners to assume that where their client's claim was against a large media organisation, the claim was unlikely to be considered a SLAPP. This was because such organisations typically have in-house legal teams who are used to dealing with claims. They might also have legal expenses insurance in place to cover such claims.
A red flag commonly associated with abusive litigation is that the claim is targeted against an individual who may also be vulnerable and/or unrepresented. The identity of an opponent can be an important (although not determinative) feature in identifying a SLAPP. However, solicitors are reminded that we expect them to comply with their obligations, irrespective of their opponent.
We also asked Heads of Department whether they had ever dealt with a SLAPP. Unsurprisingly, no one we interviewed said they had issued a claim which amounted to a SLAPP. However, some believed that they had acted for a defendant where the claim they were defending might have been a SLAPP. Examples included:
- acting for a writer who had published allegations of financial impropriety against a high-ranking government official, who had then issued a claim for defamation which the firm thought lacked merit
- defending a claim to stop publication of a story about damage caused by a quarry
- defending a claim for defamation which didn't meet the threshold.
None of these matters have been reported to us but we are looking into them to see whether we need to take any action. Where firms consider that a matter is a SLAPP, they must report those cases to us for further investigation (see the Reporting section below). We reminded Heads of Department and fee earners of this during our visits.
We did not find evidence of SLAPPs in our file reviews.
Features of a SLAPP
We asked Heads of Department and fee earners what they considered to be the features of a SLAPP. Some of the most common responses we received included individuals or corporations:
- using unreasonable threats of litigation
- using intimidating or threatening language
- sending unnecessary or excessive correspondence – this could include unnecessarily repeating points already made.
There was an acknowledgement from both claimant and defendant firms that litigation by its very nature is adversarial, with clients in conflict with each other. Sometimes this could lead to fee earners taking a 'sharper' or 'firmer' tone in correspondence, especially if they were working to tight deadlines. However, these firms also stressed their expectation that fee earners remain professional and independent.
Perspectives on SLAPPs
We also asked Heads of Department why they thought SLAPPs were an issue.
The term ''David and Goliath'' was mentioned several times to describe the uphill battle some faced against wealthy and well-resourced individuals or corporations. Such clients might try and hide or bury the truth through an inappropriate use of the legal system. Solicitors should be mindful of this inequality between the parties, especially if their opponent is unrepresented or could be vulnerable.
Other responses of why SLAPPs were an issue included:
- because it allows wealthy individuals to use aggressive tactics to whitewash their reputation or try and suppress negative information
- it uses a valid mechanism (our legal system) for improper purposes and to try and take somebody out of the game
- it is a tactic used to suppress free speech.
However, others also told us that they didn't think SLAPPs were a particularly prominent issue and gave several reasons for this:
- currently SLAPPs aren't even defined
- its entirely right to use our system to protect an individuals rights and privacy
- there is already provision in the Civil Procedure Rules to deal with unmeritorious claims but people cant afford to use it
- essentially a SLAPP is just a defamation claim – either the evidence is there to bring or defend a claim, or its not.
Several firms also stressed the importance of not assuming that something was a SLAPP. One firm said that a wealthy foreign individual bringing a claim against a foreign newspaper in England and Wales could be seen as a SLAPP. However, the firm felt that its client had a legitimate claim. Simply because they were wealthy and lived outside the jurisdiction did not automatically mean the claim would be unmeritorious and amount to a SLAPP.
We also heard about the tension between an individuals right to a private life versus anothers right to freedom of expression. We acknowledge that balancing these two rights can be challenging at times. It also highlights how important it is for solicitors to properly understand their clients case and the reasons why a client wants to take legal action. Only then can a view be taken on how to appropriately balance the clients rights and interests with the public interest.
We expect fee earners, irrespective of who they are acting for or how wide a problem they perceive SLAPPs to be, to comply with our Codes of Conduct and guard against SLAPPs, which we see as a form of abusive litigation.
Anecdotally, we heard fee earners had clients ask them to make threats against their opponents. For example, threatening the other party by exposing their non-payment of taxes, unless they agreed to withdraw or settle the claim. In essence, the client was asking the solicitor to be complicit in blackmail. This would be serious professional misconduct and, as we would, expect the fee earners reassured us that they had refused to do this.
Solicitors are reminded that they must act with integrity and within the law when advancing their clients case. If a solicitor or firm uses inappropriate methods to resolve a dispute, this should be reported to us.
- What do your fee earners know about SLAPPs?
- Would your fee earners be able to recognise a potential SLAPP and know what to do?
- What litigation techniques and tactics do your fee earners use and do you consider these appropriate?
- How do you empower and support your fee earners to deal with difficult situations or say no to a client when there are ethical concerns about carrying out their instructions?
Actions firms/individuals must take
- Comply with our warning notice on SLAPPs.
- Comply with our Principles and in particular act:
- in a way that upholds the constitutional principle of the rule of law and the proper administration of justice
- in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
- with independence
- with honesty
- with integrity.
- Identify proposed courses of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way.
- Carefully consider what proper reasons they have for labelling correspondence 'not for publication', 'strictly private and confidential' and/or 'without prejudice'. They must make sure the conditions for using these labels are fulfilled, and consider whether further explanation of the terms is required in the correspondence.
Actions firms/individuals must not take
Firms/individuals must not:
- Pursue proceedings improperly, or allow a clients interests to override wider public interest obligations or duties to the courts.
- Advise clients to pursue a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal.
- Mislead or attempt to mislead recipients of their correspondence. They should take particular care in this regard where the recipient may be vulnerable or unrepresented.
Why this is important
Disputes can be highly emotive and confrontational matters for clients. This is not surprising as the outcome of a dispute can affect an individual's life, reputation, or livelihood. It can also have a devastating impact on the value and reputation of a business. Clients can develop entrenched views and have strong ideas about the circumstances in which a dispute arose. It is not uncommon therefore for some clients to ask the firm or solicitor they instruct to pursue litigation which might be abusive and/or unfair.
Disputes can also be complex and fast paced. Working in urgent and pressurised environments can lead to difficult situations where there is a risk that protecting the interests of a client can conflict with a solicitor's professional duties. It is therefore important for firms to have measures in place to safeguard against the risk of fee earners using abusive, improper or unfair litigation tactics.
What we expect
As an officer of the court, if a solicitor encounters a situation where our Principles come into conflict, then those which safeguard the wider public interest take precedence over an individual client's interests.
Where necessary, solicitors should also be prepared to explain the circumstances where their duty to the court and professional obligations outweigh their duty to the client. Solicitors should undertake sufficient investigation of the matter with the client and establish a proper underlying legal basis before threatening to bring a claim.
This is important to maintain public trust in the profession and the effective running of our legal system. It also lessens the likelihood of a client receiving adverse costs orders.
We expect solicitors to be vigilant in scrutinising their own conduct in disputes. For example, solicitors should make sure they do not improperly prioritise their client's interests above everything else.
What we found
Assessing the merits of a case
During our file reviews, we were pleased to see that all fee earners had considered the merits of the case and discussed the potential options with the client. We were also pleased that fee earners took steps to verify the claim being advanced by their client. Fee earners would also confirm their advice in writing, even after holding a face-to-face/online meeting with the client.
Fee earners mentioned several ways they used to help them assess the merits of a case and check the veracity of the claim being brought:
- closely reviewing the alleged defamatory material and relevant documentation
- speaking to key witnesses and obtaining statements where appropriate
- collating evidence packs
- holding an extensive meeting with the client at the outset of a matter to test the available evidence
- having regular discussions with the client throughout the matter and especially when new evidence was disclosed
- obtaining advice from counsel or getting counsel to draft proceedings and court documents
- attending conferences with counsel, often with the client also present
- reviewing and requesting further documents, both from the client and from the other party
- reviewing documents already obtained in related matters.
Several Heads of Department and fee earners told us of the potential for matters to change quickly. For example, new evidence could come to light, or what the client wants to achieve could change at short notice. This demonstrates the need for fee earners to keep the merits of a case and the options available under regular review.
Eleven Heads of Department told us that in the last 18 months, they had had to tell a client that they could not pursue litigation because they considered it to be abusive or unfair. This demonstrates that this is a live issue, with Heads of Department often having to discuss with the client why they cannot pursue a course of action. It also highlights the need for firms to have measures in place to support fee earners to speak out and combat this issue.
Examples of good practice
A firm used a precedent spreadsheet to initially assess the merits of a claim.
Each allegation against its client was considered and the fee earner reviewed whether there was any evidence currently available, or could be obtained, to support their client's case.
This made sure fee earners considered and documented the evidence available when assessing the merits of the case. Being able to use a precedent and approach cases in a methodical way was seen as a particularly valuable tool, especially when working under pressure. It was also a useful way of setting out and explaining to the client the strengths and weaknesses of their case.
Another firm produced a useful guide for clients who were considering instructing the firm in a defamation, privacy, or harassment matter. This provided a generic overview of some of the legal and practical issues that could be involved and provided clients with an indication of what evidence they may need.
Assessing the merits of a defamation or libel matter
Defamation and libel claims arise from statements which an individual or an organisation considers caused, or were likely to cause, serious harm to their reputation.
We heard how in these types of cases fee earners would often have to initially assess the merits of a case based on a limited amount of documentary evidence and respond quickly. It might also not always be possible to secure evidence on a particular point. This could then lead to the fee earner having to form their own view of the situation. For example, whether a person or organisation's reputation had been damaged; whether it was possible to defend a claim on the grounds of the statement being true; or whether it had been in the public interest to publish something. As one solicitor told us, 'We are often working with the unknown'.
Defamation and libel cases can also provoke emotional responses from clients. What has, or is about to be published, can be something extremely personal or confidential. We heard how this can make clients very aggressive, with one fee earner recalling how a client wanted his opponent's 'head on a plate' and another client who wanted to 'go in, all guns blazing'.
Solicitors also told us that in representing potential claimants and defendants, they were often placed under considerable time pressure to respond to allegations or requests for information. For example, replying to requests for excessive amounts of information or trying to meet extremely short deadlines, often only a few hours. Defamation cases are also subject to a one-year limitation period which is much shorter than in other litigation claims. This can make dealing with these types of cases difficult.
One Head of Department made a passing comment, 'You have your principles, but then there is also the commercial reality'.
It is important that solicitors remain objective and advise their clients of the merits of the case and each of the options available to them. Despite the challenges that a solicitor might face - commercial or otherwise - they must maintain the standards set out in our Principles and Codes of Conduct.
While we will have regard to the circumstances of a particular case, we expect solicitors to provide a competent service to clients which is delivered in a timely manner. Given the demands in this area, solicitors will require a high degree of competence to identify and address issues. It is vital for the protection of clients and the integrity of the legal system, that individuals maintain and refresh their knowledge and understanding. This is addressed in more detail in our training and competence section below.
Solicitors should also consider the nature and circumstances of any request they make and, whether they might be abusive or oppressive. For example, sending excessive or unnecessary correspondence, or asking your opponent to respond within an unreasonable timescale could potentially amount to an abuse of process.
Dealing with material published online and on social media
Some firms told us they had seen an increase in the number of enquiries they had received in relation to negative content posted online or on social media. For example, negative online reviews left on sites such as Trustpilot or Tripadvisor, or negative comments made in group WhatsApp chats, such as parent groups at a school.
Heads of Departments told us they often turn away these matters because of the poor prospects of success. Instead, they usually advise the organisation or individual to deal with these incidents themselves, for example by contacting website administrators directly to avoid legal costs.
However, we found that where firms had agreed to act in these matters, there was a slight reluctance by some fee earners to pursue the online host.
Anecdotally, some fee earners told us that instead of pursuing the website, they had chosen to pursue the individual who had made the post. One fee earner said this was because it was 'really difficult to get (online) information removed'. Websites would also often try and distance themselves from the actual post and say that it was nothing to do with them. This could have the effect of delaying the matter for the client.
Claims relating to internet content also often meant fee earners having to consider whether England and Wales was the most appropriate jurisdiction to bring a claim. This could be because the parties themselves were based in different countries, or the website host was based in one country, but operated globally.
While each case will be different, fee earners should always be able to justify, both at the outset of a matter and throughout, why they decided to pursue a particular defendant and why this was through the courts of England and Wales.
Threatening proceedings and using inappropriate language
On 33 files we reviewed, the client had threatened to issue proceedings. However, of those files, proceedings were then only served on 11 files. Some reasons given for this included the client no longer wanting to issue proceedings or the matter being resolved without the need for proceedings.
Solicitors also need to be mindful of the language and tone used in communications. Heads of Department gave us anecdotal examples of what they had seen and considered to be unacceptable:
- attempting to intimidate or belittle others by referring to their position as being 'outrageous', 'ridiculous' or 'ludicrous'
- using words to exaggerate the impact of a situation when it was not necessary – for example referring to a 'flagrant breach' of a client's rights; referring to a client's response as being 'completely unacceptable'; or stating that 'your client's explanation is absurd'
- attempting to scare the other party by stating that a particular course of action is likely to occur, for example threatening that somebody might face a custodial sentence or bankruptcy.
Some firms told us that they deliberately adopted a 'house style' with the aim of developing a less antagonistic culture within the team when communicating with an opponent. This was to try and prevent fee earners adopting a hostile or aggressive tone in correspondence and was borne out by the file reviews.
Solicitors should consider why they are sending any written correspondence and whether it furthers their client's case. As one fee earner told us, 'the skill of being a lawyer is to present your client's best case but that doesn't mean you have to be aggressive'.
Some firms told us that in some circumstances it was more appropriate for the client to send the communication rather than the firm, so the matter would not escalate unnecessarily. This can be proper and sensible advice to the client. However, solicitors must not assist a client to send a letter which is inappropriate or makes improper threats of litigation. There was also an acknowledgement that sending overly aggressive or intimidating letters would not always be in the client's best interests, especially if they were looking to resolve the dispute at an early stage.
Worryingly, some Heads of Departments also mentioned seeing what they considered to be borderline dishonest statements being made by other solicitors. For example, solicitors stating that they had received instructions to 'engage counsel' or they 'expected to be instructed to issue proceedings'. This created the illusion that they were preparing to issue proceedings whereas in reality, there was then no further contact. This could be seen as taking unfair advantage of another party. Solicitors should be careful about what they say and the language they use in correspondence. This is especially important when writing to a litigant in person or vulnerable individual, given the impact it might have on them.
We reminded Heads of Department of their duty to report matters to us where they received correspondence which raises a concern that someone we regulate has committed a serious breach of our rules.
We expect solicitors not to intimidate or mislead recipients of correspondence, and to take particular care where a recipient may be vulnerable or unrepresented.
During our file reviews we saw some correspondence labelled as:
- strictly private and confidential / not for dissemination
- not for publication
- without prejudice.
Solicitors should only label correspondence in these ways where there is a proper reason for doing so and when the conditions for using those terms are fulfilled. You cannot unilaterally impose a duty of privacy or confidentiality where one does not already exist.
Fee earners told us that they would label correspondence 'private and confidential' or 'not for publication' because it contained information the client did not want in the public domain. Such information was often sent to try and stop publication of other allegations. Correspondence was labelled in this way to make it clear to any unintended recipient, or to inform any recipient, that they could not rely on the defence of consent if they chose to publish it. We did not see any inappropriate use of these labels during our file reviews. We reminded fee earners of the importance of making the client aware that even when these labels are used, it does not guarantee that the content will not be published. Firms should also carefully consider what proper reasons they have for labelling correspondence in these ways, and whether further explanation is required to make it clear why they are being used, particularly where the recipient might be vulnerable or unrepresented.
While we saw no inappropriate use of the term 'without prejudice' during our file reviews, we also reminded fee earners that they should only use this label when the communication represents a genuine attempt to resolve a dispute.
Policies and procedures
We asked firms whether they had any policies and procedures in place that set out how fee earners should conduct litigation or deal with reputation management matters. Only one firm had a written policy, and this had only recently been created.
The firm felt the policy would serve as a useful reminder for supervisors and fee earners of the practical steps they could take to make sure matters were dealt with appropriately. For example, the policy stated:
- do not be afraid to change your advice if circumstances change
- partners should provide regular oversight and supervision of fee earners
- do not take advantage of opponents and be especially careful with unrepresented individuals
- do not send overbearing or aggressive correspondence
- do not mislead the court or third parties
- do not threaten proceedings unless there are reasonable grounds
- do not make unsustainable allegations.
The policy was circulated to all fee earners in the team. It served as a useful reminder to them of their regulatory obligations and could be accessed at any time on the intranet.
Thirteen firms told us that how they dealt with reputation management matters differed from other litigation the firm handled. This was because they recognised that there were specific risks in dealing with reputation management matters. Reasons for this included:
- fee earners spend considerably more time with clients at the outset testing their evidence, because often there was limited or no documentary evidence available
- clients in phone hacking cases often won't have enough evidence to bring a claim, so fee earners might need to carry out their own research
- junior fee earners would never have overall responsibility for a matter because of the potential difficulty in 'pushing back' against a wealthy or powerful client
- 'we sometimes have to take our legal hat off and look at the issue as a human being rather than just a legal issue'. Similarly, another Head of Department said they would always ask 'What's the objective?' rather than just asking 'What's the legal issue?'. There is often more of a need for solicitors to take a common-sense approach
- 'we might be instructed earlier than we would normally and before there is a potential claim, because of the threat of something being published'.
To mitigate against these risks in reputation management matters, firms told us they would:
- make sure partners were involved and sign off key documentation and letters
- make sure there was closer supervision of staff and regular meetings between fee earner and supervisor to discuss cases
- carry out additional checks to review the reason behind the firm's instruction and to establish who is funding the litigation, and to safeguard against the possibility of the client bringing a SLAPP
- remind fee earners of their professional ethics duties during induction and the procedure for raising any concerns internally.
While we do not specify that firms must have policies and procedures in place on how to conduct litigation, having these in place can help set standards and make sure a consistent approach is maintained. For example, they can set out how a matter should be handled on a day-to-day basis, the standards expected of fee earners and what they should do if a concern is raised about potential abusive or unfair litigation. It also offers an opportunity to bring our Codes of Conduct, guidance and warning notices to fee earners' attention.
- What steps do fee earners take to assess the merits of a case and options available to a client?
- Are the merits and options available to a client regularly reviewed and documented?
- Does your firm have any policies and procedures on how fee earners should conduct litigation or deal with reputation management matters?
- In what circumstances do fee earners label correspondence as 'strictly private and confidential', 'not for publication' and 'without prejudice'?
- Is further explanation required to make it clear why correspondence is being labelled as 'strictly private and confidential', 'not for publication' 'without prejudice', particularly where the recipient might be vulnerable or unrepresented?
- How are fee earners supervised and how do supervisors make sure the tone of correspondence is appropriate?
Actions firms/individuals must take
- Comply with our guidance on conduct in disputes.
- Draw the court's attention to procedural irregularities which are likely to have a material effect on the outcome of the proceedings.
- Take special care when dealing with or corresponding with an opponent who is unrepresented or vulnerable. Solicitors must make sure that they do not take advantage of such opponents, for example, by setting artificially short or wholly unnecessary deadlines to reply to correspondence.
Actions firms/individuals must not take
- Abuse their position by taking unfair advantage of clients or others.
- Mislead, or attempt to mislead their clients, the court or others, either by their own acts or omissions or by allowing or being complicit in the acts or omissions of others (including their client).
- Improperly prioritise the client's interests above others.
- Make exaggerated claims of adverse consequences including alleging liability for costs that are not legally recoverable.
- Send letters in abusive, intimidating or aggressive in tone or language.
Why this is important
Reporting behaviour that presents a risk to clients, the public, or the wider public interest, goes to the core of the professional principles of trust and integrity. It is important that solicitors and firms let us know about any serious concerns promptly. This is so we can act where necessary to protect clients. Reporting concerns can also help us build our knowledge of the sector and monitor firms in future for patterns of poor behaviour.
We recognise that in the course of conduct leading up to and including litigation, lawyers will need to act in defence of their clients' interests and that correspondence will sometimes properly be robust, formal and/or lengthy. However, where unacceptable behaviours do arise, for example conduct before or during legal proceedings, solicitors are required to report these to us. Whether or not a matter should be reported is a matter of judgment, which will depend on the individual facts and circumstances. If you are unsure about whether to make a report, you should err on the side of caution and do so.
Furthermore, given the concerns around SLAPPs, we expect firms to report SLAPP threats to us. This is even more important because, if they achieve their goals, SLAPPs do not reach court and the behaviours will not come to light. The absence of judicial scrutiny does not, however, prevent us from investigating complaints.
What we found
Reporting matters to us
We asked Heads of Department if they or anybody in their team had ever reported a firm or an individual to us about their conduct during litigation. Most Heads of Department (19) said they had never needed to, with three saying they had made a report for misleading the court/bringing a meritless claim. One firm told us that although it was evidentially a difficult decision to make the report, it was the right thing to do.
Three Heads of Department told us that they didn’t make a report where conduct might have been an issue. This was because:
- they didn't want to add an 'additional dimension to an already complex issue as they would not be thanked by the client'
- it was difficult to tell whether a solicitor previously involved in the case had been incompetent
- having reviewed our Principles, they were unsure whether there was a breach
- they thought they didn't have time to make a report because they were being bombarded by the other side and had to focus on the legal points instead.
None of these reasons justify not reporting a matter to us. All of these firms were asked to review each of these matters. We will look into them to see if action is needed.
Firms and individuals we regulate are under an obligation to report serious misconduct and if behavior falls in that category, firms must make a report to us. We reminded firms of this obligation.
We also asked Heads of Department what considerations they took into account when deciding whether to report a matter to us. Most Heads of Department and fee earners appreciated that seriousness was a key factor when considering whether to make a report.
Other considerations included:
- not being aware of the full facts, for example the answers might be invisible to the firm but more obvious to the other side
- not knowing if it is a deliberate error on the part of an opponent
- whether the outcome will be worth it or impact on the litigation
- any client vulnerability
- appreciating that there is a fine line between unacceptable conduct in litigation and legitimate litigation tactics
- whether it would be in the client's best interests
- whether it is an obvious breach.
It is important to recognise that factors other than seriousness - for example client consent, the impact of making a report on the client or the time and resource involved in making a report – are not relevant considerations.Firms and individual solicitors should also remember that they do not need to have all the evidence to hand before deciding to make a report to us. We have the power to obtain appropriate evidence. If there is any doubt about whether to make a report, firms and individual solicitors should contact us to discuss the matter further.
Firms must read our guidance note on reporting and notification obligations as well as our enforcement strategy to better understand the circumstances in which they are obliged to make a report. This is discussed further below.
We reviewed 50 files to consider whether there were any concerns that should have been reported to us. There was only one file where there was potentially an issue about whether a matter should have been reported. In this matter, there was no evidence of deliberate dishonesty although the claim appeared meritless. The representative acting on behalf of the claimant was not a solicitor and the firm are undertaking further investigations to determine whether a report needs to be made to another regulator.
Our reporting guidance
We were also interested to learn more about whether firms and individual solicitors were aware of our guidance on reporting and notification obligations. The guidance:
- provides a summary of what firms need to tell us and when
- sets out relevant considerations including:
- disclosing material to us which may be sensitive, confidential or privileged
- putting in place appropriate protections for those who make reports to us
- details of how to make a confidential report to us, and references to other sources of advice or assistance
- the evidential threshold that needs to be met, together with our enforcement strategy.
Eleven Heads of Department we interviewed were not aware of our guidance, with a further two unsure about whether they had seen it. We asked fee earners the same question and only six fee earners were aware of our guidance.
Although a firm might have internal procedures where responsibility for making a report lies with the compliance officer for legal practice (COLP) or another individual at the firm, it is important that all solicitors are aware of our requirements in this area given the personal obligation on them to make a report in appropriate circumstances. This will enable them to better understand the circumstances which may give rise to concerns that should be reported and raise issues internally to the COLP where necessary. It will help make sure that a breach of our Standards and Regulations, for example inappropriate conduct in disputes or a SLAPP, is brought to our attention promptly.
All solicitors working in this area have an important role to play to maintain honesty and integrity in the profession and the proper administration of justice. As many cases are resolved at the pre-action stage, this role becomes even more significant in the absence of judicial scrutiny.
During our interviews, several Heads of Department noticed an increasing trend of firms threatening to make a report to the SRA for alleged breaches of our Codes of Conduct where there was no basis to do so. Where the threat to make a report to us is intended to inappropriately influence the course of a matter, we regard this as an abusive litigation tactic and will take such circumstances seriously.
We reminded firms during visits of their obligation to report matters. If firms need further guidance they can contact our Ethics Guidance Helpline
- How do you make sure fee earners are aware of and understand our guidance on reporting and notification obligations?
- Have fee earners received training on the circumstances in which behaviour in conduct in disputes (including a SLAPP) can give rise to a report to us?
- Has training been provided to fee earners on what factors they should and should not take into account when considering whether to make a report to us?
- Do fee earners understand that threatening to report a firm to us where there is no basis to do so is an unacceptable litigation tactic and an abuse of process?
Actions firms/individuals must take
- Read and understand our guidance note on reporting and notification obligations as well as our enforcement strategy.
- Report matters:
- which amount to a SLAPP
- which are a serious breach of our Standards and Regulations.
Actions firms/individuals must not take
Firms/individuals must not:
- Ignore our guidance on reporting and notification obligations.
- Delay in making a report to us.
- Threaten to make a report to us for alleged breaches of our Standards and Regulations where there is no basis to do so.
Why this is important
Solicitors are officers of the court, and their overriding duty is to the rule of law and the administration of justice. Nowhere is that more apparent than when conducting litigation.
We are seeing an increasing number of reports about unacceptable behaviour when conducting disputes. We are also aware of public concerns that solicitors and law firms are pursuing SLAPPs on behalf of their clients.
Training and maintaining fee earner competence are a key part of making sure that the integrity of the justice system is not threatened by poor conduct or unethical behaviour in litigation, as well as averting potential harm to people. Solicitors who conduct litigation and give dispute resolution and pre-action advice have regulatory obligations they must adhere to. It is important that they are fully aware of those obligations and receive appropriate training on them.
What we expect
The Standards and Regulations
To comply with our Code of Conduct for Solicitors, Registered European Lawyers (RELs) and Registered Foreign Lawyers (RFLs), all solicitors must maintain their competence to carry out their role. Our Competence Statement says solicitors need to, amongst other things:
- Reflect on and learn from their practice and learn from other people.
- Maintain an adequate and up-to-date understanding of relevant law, policy and practice.
The standards in our Code of Conduct for Solicitors, RELs and RFLs (also reflected in our Code of Conduct for Firms) help those conducting litigation to understand the standards which apply specifically in this area of work.
For example, Chapter 1 of the Code of Conduct for Solicitors, RELs and RFLs emphasises the importance for all those conducting litigation to maintain trust and act fairly.
Rule 1.2 states that a solicitor must not 'abuse their position by taking unfair advantage of clients or others'. Rule 1.4 states that a solicitor must not mislead, or attempt to mislead their clients, the court or others, either by their own acts or omissions or by allowing or being complicit in the acts or omissions of others (including their client).
Chapter 2 highlights further specific duties to the court. These include:
- not seeking to influence the substance of evidence (Rule 2.2)
- only making assertions or putting forward statements, representations or submissions to the court or others which are properly arguable (Rule 2.4)
- drawing the court's attention to procedural irregularities which are likely to have a material effect on the outcome of the proceedings (Rule 2.7).
In maintaining the balance between all their duties - to clients, the court, third parties and to the public interest - solicitors' best guides are their integrity and independence.
What are the benefits of good training?
Our interviews with fee earners and file reviews identified that legal advice in this area is often provided in difficult circumstances, with significant time constraints and where one party might be particularly vulnerable. This can be exacerbated if there is also an inequality of arms between the parties.
Training helps support fee earners to secure good outcomes for clients and helps them anticipate future problems and identify regulatory risks. It reminds solicitors of their regulatory responsibilities and raises awareness of red flags and concerns to help maintain the integrity of the profession.
What we found
We looked at several key areas during the litigation process to assess competence. We were pleased that all Heads of Department confirmed that there were no instances where the firm had been the subject of a wasted costs order in the past 18 months and nobody at the firms had been requested by a judge to explain the firm's conduct in a matter during that period. This was confirmed by our file reviews.
All but one firm told us that they had not been the subject of any judicial criticism in the past 18 months. One Head of Department said that that the firm had been the subject of judicial criticism, although this concerned a discrete issue on costs.
Our file reviews also looked at how firms acted in dispute resolution matters. In particular, they considered the:
- language and tone used in correspondence
- steps taken to assess the merits of a claim
- nature of the allegations made
- identification of defendants
- connection to the jurisdiction
- issue and service of proceedings
- nature of the legal remedy sought.
Overall, we did not find any issues with the wider competence of fee earners when handling dispute resolution work (Competency relating to reporting and notification obligations has been addressed above and ethical issue is considered in more detail below).
Eleven Heads of Department and six fee earners also told us that there were occasions where the firm had to tell a claimant they could not pursue litigation because it was abusive or unfair. An important part of dealing with this is making sure fee earners are trained so they can identify such situations and refuse to act.
We have issued the following specific guidance on conduct in disputes:
and a warning notice on SLAPPs (which was published after our thematic visits).
We asked Heads of Department if they were aware of our guidance in this area. Disappointingly, just over half (14) were aware of our conduct in disputes guidance (published as recently as March 2022) and only five of our earlier 2018 guidance on balancing duties in litigation.
Where firms and fee earners were not aware of our guidance, we reminded them of the importance of reading and understanding them and bringing them to the attention of all fee earners.
Our recent warning notice states that:
'We expect you to be able to identify proposed courses of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way. We expect you to advise clients against pursuing a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal.'
It is therefore imperative that solicitors receive training on identifying courses of action which might amount to a SLAPP.
We asked Heads of Department when fee earners in the team last received training on how to identify and deal with potential SLAPP cases. They said:
When did fee earners last receive formal training on how to identify and deal with potential SLAPP cases?
|Within the last week||3|
|Within the last month||7|
|Within the last three months||2|
|Within the last six months||4|
|Within the last year||1|
|Over a year ago||1|
Where formal training was provided it consisted of:
- seminars at barristers' chambers
- attending conferences
- internal training delivered by fee earners, a professional support lawyer (PSL) or external barrister at weekly/monthly meetings
- online training
- litigation away days covering conduct issues
- external client events where a partner delivered a talk to clients and fee earners on SLAPPs.
Disappointingly, seven Heads of Department said they had never provided fee earners with any formal training on how to identify and deal with a SLAPP (although we were encouraged that training in some cases had been provided on an informal basis). Reasons given for the absence of formal training included:
- 'although we talk about SLAPPS and interesting cases and articles at team meetings, there is no formal training process'
- 'we don't see SLAPPS at all so there is no need to provide training. If we saw more of it, I would get chambers to come and give us a talk'
- 'we pass on knowledge through osmosis' and 'it is on-the-job training'
- 'we are a small team and so it is easy to pass on knowledge in an informal way'
- 'it is only senior partners that work in this area and we have been doing it such a long time that we are already fully aware of the issues'.
It is important that solicitors working in this area can identify a SLAPP, decline to act in such cases and, where appropriate, make a report to us. It is critical that all fee earners receive training in this area, particularly as it can involve complex matters. Awareness of the key features of a SLAPP will help fee earners identify it and call it out.
We have provided extensive guidance in this area which has been supported by our recent warning notice. Our guidance and warning notice can be used as the basis for training (see case study below) and supplemented by additional training where appropriate.
There are likely to be regulatory considerations in the guidance and warning notice that fee earners might not have encountered or considered and which they need to be aware of and could benefit from. The next instruction that a firm or solicitor might receive could involve a SLAPP and it is not good enough to say that they have not undertaken any training in this area because they haven't come across a SLAPP. It is important that all solicitors read and understand our guidance and warning notice.
Fee earner training
We also asked fee earners when they last received training on how to conduct fair and appropriate litigation more generally (for example, not taking unfair advantage, misleading the court, pursuing litigation for improper purposes, disclosure obligations):
When did you last receive training on how to conduct fair and appropriate litigation?
|Within the last week||3|
|Within the last month||8|
|Within the last quarter||1|
|Within the last six months||3|
|Within the last year||1|
Eight fee earners said they had not received any training in this area. We expect firms to do more and make sure fee earners are aware of their regulatory obligations when conducting litigation.
Where fee earners received training, this consisted of:
- weekly/monthly internal team meetings where training was led by fee earners, PSLs, partners or external counsel
- external training
- online training.
Case study: the benefits of simple and effective training
Firm A specialises in defamation, reputation management and privacy. It has a small team consisting of two partners and four fee earners. The team holds monthly meetings. At one of these meetings, our guidance on conduct in disputes and balancing duties in litigation were reviewed to discuss regulatory considerations in this area and risks that fee earners should be aware of. One fee earner led the team through the guidance and other training material that is freely available. It was followed by a question-and-answer session and team discussion.
The firm followed up the training with a session delivered by external counsel on the use of 'without prejudice' labelling in correspondence, taking instructions and SLAPPs. Conduct in disputes is also covered in training provided to new starters to the department.
Following the training, the firm said fee earners had a much clearer understanding of their regulatory obligations in this area and where they could go to for further information and help. The training helped fee earners better understand the types of behaviours that may amount to unacceptable conduct in disputes and avoid engaging in it. It also placed them in a better position to identify and report such conduct when they see it. Making sure that fee earners acted with integrity was considered crucial to maintaining the firm's reputation.
- Are all fee earners practising in this area aware of our guidance on conduct in disputes and warning notice on SLAPPs?
- Have fee earners received training on conduct in disputes and SLAPPs including their regulatory obligations and how to comply with them?
- How does the firm assess the competence of fee earners working in this area?
- Does the firm provide support to staff to meet any training and competence requirements?
- What steps has the firm taken to make sure fee earners maintain an adequate and up-to-date understanding of relevant law, policy and practice?
- Can staff provide coherent and detailed training records?
- Has your firm considered using training plans to aid training, development, growth and to support continuing competence?
Actions firms/individuals must take
- Maintain their competence to carry out their role and keep their professional knowledge and skills up to date.
- Make sure managers and employees are competent to carry out their role.
- Make sure they are aware of and understand our guidance on conduct in disputes and warning notice on SLAPPs so they are meeting the high professional standards we expect.
- Take responsibility for their personal learning and development.
- Reflect on and learn from their practice and from other people.
- Accurately evaluate their strengths and limitations in relation to the demands of their work.
- Maintain an adequate and up-to-date understanding of relevant law, policy and practice.
- Adapt their practice to address developments in the delivery of legal services.
Actions firms/individuals must not take
Firms/individuals must not:
Warning Notice and Guidance
We have published a warning notice and guidance notes which impact directly on firms providing dispute resolution legal services including:
- warning notice on SLAPPs
- guidance on conduct in disputes
- balancing duties in litigation
- case studies about providing proper standards of service for vulnerable consumers.
SRA Principles and Code of Conduct
The Principles and Code of Conduct describes the standards we expect of individuals solicitors and firms:
Continuing Competence resources
Firms and solicitors should familiarise themselves with our resources on:
Reporting an individual or firm to us
For individuals concerned about a letter from a law firm or a solicitor threatening legal action against you, further information can be found here.
We have provided resources to help individuals make a report.
If solicitors/firms need any help in reaching a decision whether to make a report, they can: