The Solicitors Regulation Authority (SRA) has warned solicitors not to become ‘hired guns’ who carry out their clients’ instructions whilst ignoring their wider duties to the courts, third parties and the public interest. The regulator’s reminder comes in the wake of widespread allegations of sexual misconduct and the #MeToo scandal.
The SRA has refreshed its paper on ‘Balancing Duties in Litigation’ which discusses the differing duties owed by solicitors in litigation and highlighting the ways in which misconduct can arise. In particular, the regulator has highlighted the risks of inappropriately drafting Non-Disclosure Agreements (NDAs), which have been widely used in employment disputes, including those alleging harassment and sexual misconduct.
Paul Philip, SRA Chief Executive, said: “Maintaining the correct balance between duties is not simple and all matters must be decided on the facts. Solicitors should of course advance their clients’ cases, but they are not ’hired guns’ whose only duty is to that client.”
“It is important for solicitors to recognise their wider duties and never to rationalise misconduct on the mistaken basis that their only duty is to their client, for example by including clauses in non-disclosure agreements which seek to prevent lawful disclosure of harassment or discrimination.”
The SRA has made it clear that it will act against firms where it has evidence that they misled the courts or abused the litigation process.
James Burgoyne, Director – Claims & Technical, Brunel Professions says the regulator’s warning is both important and difficult. “In a highly competitive market it is easy for solicitors to single-mindedly focus on meeting their clients’ requirements. Doing a great job for clients is essential for running a successful practice. Behind that sits the constant consideration that a solicitor owes a fiduciary duty to the client, and solicitors do not want to fall short of its requirements. But there are clearly also times when solicitors should take a mental step back and consider whether they are being asked to overstep the mark on their clients’ behalf,” he said.
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