Balancing duties in litigation

Litigators’ duties

It is well-known that lawyers have duties to their clients: a lawyer must seek to follow their client’s instructions and act in their best interests. In a dispute, that means presenting the client’s case in a compelling way and pursuing the strategy most likely to result in a positive outcome. But the duty to act in the client’s best interests is just one of several duties which lawyers face and which they must strive to balance when conducting disputes.

The Solicitors Regulation Authority (SRA) of England and Wales has recently sought to remind litigators that they are not ‘hired guns’ whose job is just to follow client instructions. The SRA’s recent guidance on ‘Balancing Duties in Litigation’ makes clear that solicitors must conduct disputes not only in keeping with their client’s interests and instructions, but also with an eye on wider duties that reflect the proper role of the legal profession in society.

So, whilst seeking the best outcome for clients, litigators must conduct disputes with independence, honesty and integrity, and in a way that upholds the rule of law and public confidence in the legal system. Importantly, it is clear that these wider societal duties trump the client duty. If the path which a client wishes to pursue conflicts irreconcilably with a solicitor’s wider duties, the solicitor must explain this to the client and decline to follow their instructions.

What is a SLAPP?

One of the factors behind the new guidance issued by the SRA is growing professional and public concern about ‘SLAPPs’: Strategic Litigation Against Public Participation. A SLAPP is where a party – typically powerful and well-resourced – brings legal proceedings with a view to intimidating and bullying an opponent.

A classic example of a SLAPP would be where a powerful individual or business brings a claim against a critic, and where the primary purpose of the claim is not to achieve justice in court but rather to intimidate the critic into silence. In such cases, the claimant uses litigation to exhaust their opponent financially and psychologically, in the hope of not only neutering that individual but also setting an example to others who might be minded to investigate or speak out.

Features typical of a SLAPP include: inflated or baseless claims; exaggerated threats regarding legal costs; unjustified warnings about the consequences of discussing the litigation; and language intended to flummox and intimidate. A SLAPP will almost always involve legal practitioners failing to properly balance their duties, and in particular pursuing their client’s instructions at the expense of the wider public interest.

The SRA’s new guidance arises from concern that the English courts may be used not as a forum for achieving justice but rather as a tactical weapon by the powerful seeking to stifle public discourse.

What does this mean for litigators?

Although provoked in part by concerns regarding SLAPPs, the guidance is of relevance to all litigators practising in England and Wales. Many other jurisdictions, including Scotland, also expect their solicitors to balance a range of duties when conducting disputes, and the SRA’s new guidance is therefore a timely reminder of what that balancing exercise involves.

The guidance is thematic rather than prescriptive, and it is for individual firms and lawyers to use their judgment to ensure that they balance their duties properly. Nonetheless, it is clear that certain behaviours will put solicitors at serious risk of breaching their duties. In particular, a solicitor:

  • must never knowingly mislead the court or fellow professionals;
  • must never take unfair advantage of any party, and especially those without legal representation;
  • must be fully independent, and willing to tell their client when what they propose to do is wrong;
  • must not waste the court’s time with claims which are inflated or arguments which have no prospect of success; and
  • must conduct litigation in a way that is proportionate and not unduly aggressive or intimidating.

Behaviours such as these, and failure to balance duties generally, can result in regulatory sanction and, in egregious cases, solicitors being struck off.

What does this mean for clients?

The duties discussed in this article fall primarily on solicitors, but these issues are important for clients too. A good legal case is rarely helped by excessive aggression or a lack of respect for the court and opponents. Indeed, an overly aggressive approach will often distract from a good case, and make a consensual resolution less likely. If a party pursues a case in this way, then even if it is successful in court, it runs the risk of adverse costs consequences and negative publicity. And ultimately, society as a whole suffers if a vital public resource such as the court system is drained and undermined by claims being pursued without regard to justice and proportionality.

A good litigator will always pursue their client’s case robustly while affording due respect to opponents, the courts and third parties such as witnesses. Balancing duties in litigation does not mean pulling one’s punches, but rather ensuring a fair fight which enhances rather than detracts from confidence in the world-class court systems we enjoy in both England and Wales and Scotland.