The Solicitors Regulation Authority (SRA), Bar Standards Board and other legal regulators need to do more to deal with SLAPPs – strategic lawsuits against public participation – because they are undermining the profession’s reputation, a report has argued.
It has also urged lawyers to ensure they are meeting high ethical standards when threatening journalists with legal action.
The role of lawyers in SLAPPs – seen as attempts by the wealthy, like oligarchs, to suppress legitimate criticism – has become a major talking point since Russia’s invasion of Ukraine.
The highly critical report on the use and impact of SLAPPs was published yesterday by the Foreign Policy Centre, a thinktank, and freedom of expression organisation ARTICLE 19.
They urged legal regulators to “prioritise the issue of legal intimidation and SLAPPs as one of serious concern undermining the reputation of the UK legal community”.
The report said regulators should engage in awareness-raising initiatives highlighting the impact on journalists and the broader media freedom environment.
Regulators should provide guidance to lawyers and law firms on how to identify potential SLAPP cases and “expand regulatory frameworks to ensure that UK law firms are not complicit in facilitating SLAPPs and that intimidatory and inappropriate behaviour in legal communication is effectively sanctioned”.
This could be done, for example, through the SRA adopting a specific anti-SLAPP warning notice, similar to the one published in 2018 on non-disclosure agreements.
The reference to SLAPPs introduced in the SRA’s revised ‘conduct of litigation’ guidance in March served as a “good foundation”.
Further recommendations were to remove any requirement to complain to the law firm first about their behaviour, and to monitor complaints regarding behaviour that bears the hallmarks of legal intimidation and SLAPPs and publish data about this annually.
“Without sufficient guidance and effective enforcement there is nothing stopping lawyers from knowingly pursuing lawsuits filed with the improper purpose of silencing criticism.
“This can result in the protection of, and impunity for, powerful corrupt individuals with deep pockets.
“Therefore, all codes of conduct relevant for the legal sector across the UK should be updated with information and guidance on identifying SLAPPs circulated and publicised, potentially through training or workshops, to members of the profession.”
Away from regulation, the report urged law firms to have, and comply with, “publicly available commitments to use high ethical standards when writing to journalists and media outlets threatening legal action, including being mindful of the position of the recipient (especially if individual journalists or media based overseas) and avoid the use of language or tactics that could intentionally or otherwise be perceived to intimidate or harass”.
It called too on the profession to strengthen due diligence checks on clients’ source of wealth and also encourage pro bono legal support for journalists and media outlets facing legal intimidation and SLAPPs.
The report also accused lawyers acting on behalf of SLAPP litigants of benefiting from the lack of regulation of private investigation and PR firms “to obtain evidence and tactical advantages such as paying witnesses for evidence in private-party civil proceedings”.
More broadly the authors made a range of other recommendations, chief among which was for the government to adopt an anti-SLAPP law to “strengthen procedural protection”.
This would comprise accelerated procedures to dispose of SLAPPs at the earliest possible stage in proceedings and sanctions to “deter and delegitimise” their use.
The report concluded: “The legal system across the UK as it stands is unfairly stacked in the favour of those who have money to pursue incredibly costly legal action and those who do not.
“A more equitable system is needed in order to ensure that legal action can be pursued against media in a way that will not potentially financially cripple them but will address a genuine concern and ensure remedy for those who have been defamed.
“At the same time, those who wish to utilise the legal system as a tool to hide their wrongdoing cannot take advantage to bully journalists and media into submission.”
In March, the Ministry of Justice issued a call for evidence on SLAPPs, but described them as “a behavioural issue requiring regulatory interventions” against lawyers as much as using legislation.