Conduct

A. Solicitors’ Conduct Rules for Litigation

Despite the importance of litigation to the solicitor’s role, until recently it did not have a central role in solicitors’ conduct rules.

The chapter on client relations in the SRA Code of Conduct 2011 contains one out­come specific to litigation. This concerns the provision of services to clients in a man­ner which protects their interests in their matter, subject to the proper administration of justice.^[2717] The chapter on third parties contains one outcome and three indicative behaviours that are arguably relevant to litigation.^[2718] The outcome is not taking unfair advantage of third parties.^[2719] The indicative behaviours are providing sufficient time and information to agree costs,^[2720] not taking unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer^[2721] and not demand­ing anything for yourself or on behalf of your client, that is not legally recoverable.^[2722]

Chapter 5 of the SRA Code of Conduct 2011, ‘Your Client and the Court’, sets out the duties to clients, and to courts, of those exercising a right to conduct litigation or acting as an advocate. The eight outcomes are said to apply to both litigation and advocacy. A bundle of outcomes are, however, traditionally associated with advo­cacy, although they could as easily apply to litigation generally. These are complying with the duty to the court,^[2723] not deceiving or knowingly or recklessly misleading the court^[2724] or being complicit in another person doing so.^[2725] A related outcome is inform­ing clients in circumstances where these duties outweigh obligations to them.^[2726]

A second set of outcomes more obviously relate to the conduct of litigation gen­erally.

There is one indicative behaviour relevant to Outcome 5.7. It is ensuring that child witness evidence is kept securely and not released to clients or third parties.^[2731] It is not clear whether this is intended to apply to evidence given in open court, which could be reported by the press. It is also unclear whether solicitors would fail to achieve the outcome if they pass on such information when, for example, the press was not in court. On the face of it, the outcome could prevent solicitors providing information to the press, including details emerging in the litigation about clients of the other side.

It may be that Outcome 5.7 applies whether or not the press could report the infor­mation. This is consistent with solicitors having high standards of integrity. On the other hand, there is arguably no ‘misuse’ of information if it has come out in open court. It may be that the outcome is only intended to apply to information which is restricted to the proceedings.

An analogous situation on disclosure is covered by the Civil Procedure Rules 1998 (CPR). These provide that parties receiving documents may use them only for the purpose of the proceedings in which they are disclosed, except where the document has been read to or by the court, or referred to, at a hearing which has been held in public.^[2732] If solicitors are restricted in their use of third party information produced in open court, it is unclear whether this restriction covers all situations.

Among the other indicative behaviours in Chapter 5, many are most relevant when solicitors act as advocates. An example is informing the court when the advocate has inadvertently misled it.^[2733] A second set of behaviours expressly relate either to advo­cacy or litigation generally. An example is an indicative behaviour suggesting that solicitors should not appear as advocates, or act in litigation, if it is clear that they, or anyone at their firm, will be called as a witness in the matter, unless they are satisfied that their independence, the interests of their client or the interests of justice would not be prejudiced.^[2734]

A third set of indicative behaviours in the SRA Code of Conduct derive from the Law Society advocacy code. This was based on provisions of the old Bar Code of Conduct. These rules related to litigation tasks more commonly, formerly at least, performed by barristers, such as drafting statements of case. Therefore, an indicative behaviour suggests that solicitors should not draft documents in proceedings contain­ing contentions they do not consider to be properly arguable.^[2735] The same behaviour suggests they should not make allegations of fraud, unless they are instructed to do so and have material which they reasonably believe shows fraud. While drafting is obviously classified as a litigation task rather than an advocacy task, this wording is almost exactly the same as that used in the former Bar Code.^[2736]

The fourth and final set of indicative behaviours in the SRA Code of Conduct specifically relate to issues that are more likely to arise in relation to litigators than advocates. A positive behaviour is advising clients to comply with court orders made against them, and advising them of the consequences of failing to comply.^[2737] Two negative behaviours are attempting to influence a witness regarding the contents of their statement^[2738] or tampering with evidence or persuading a witness to change their evidence.^[2739]

This account of conduct rules shows that litigation is less heavily regulated by the professions than might be imagined.

B. Barristers’ Conduct Rules for Litigation

Although barristers probably had the right to accept litigation clients during the twen­tieth century, they rarely did so.^[2740] The Bar Code traditionally focused on advocacy, but did touch on litigation roles in which barristers were also instructed, for example, drafting. The rules now provide that barristers may only accept such instructions when they have been authorised to conduct litigation in accordance with the require­ments of the Handbook.^[2741] Other amendments made as a result of the right to conduct litigation are consequential rather than substantive. Provisions formerly referring to rights of audience now refer to litigation also.

The new Code of Conduct specifies that Core Duty 1, observing the duty to the court in the administration of justice, overrides any other core duty.^[2742] The first outcome is that the court must be able to rely on the information provided to it by those conducting litigation and by advocates.^[2743] This is supported by rules, familiar from the old regime, that relate either specifically to litigation or to both litigation and advocacy. For example, barristers must not knowingly or recklessly mislead or attempt to mislead the court, must take reasonable steps to avoid wasting the court’s time, and must ensure that their ability to act independently is not compromised.^[2744] Those requirements relating more naturally to advocacy, such as handling witnesses, are dealt with in chapter nineteen.

The new Bar Code also includes obligations that arise more naturally from litiga­tion than from advocacy. The duty to the court covers the discovery of documents that come to light which should have been disclosed. Barristers cannot continue to act unless their client agrees to the disclosure of the document.³⁹ The duty to act with honesty and integrity includes not knowingly or recklessly misleading or attempting ‘to mislead anyone’.⁴⁰ There is also an obligation to comply with any undertaking given in the course of conducting litigation within an agreed timescale or within a reasonable period of time.⁴¹

The old duties relating to drafting that were adopted by solicitors have also been transported into the new Bar Code.

Another old rule reproduced in the new Code is that barristers must not make any allegation of fraud without clear instructions to allege fraud and reasonably credible material which establishes an arguable case of fraud. When drafting a witness state­ment, or affidavit, barristers must not include any statement of fact other than the evidence which they reasonably believe the witness would give orally.⁴²

IV.