Miller: Who lawyers decide to act for is not a regulatory issue

Miller: Everyone is entitled to legal advice

Who lawyers choose to act for is not a regulatory issue – and the Solicitors Regulation Authority (SRA) needs to be clear on this, a leading legal regulatory specialist said yesterday.

Iain Miller also said the SRA should not prevent lawyers from advancing in court “arguable” claims even if they expect to lose.

Giving the keynote address at the Law Society’s risk and compliance annual conference, Mr Miller said solicitors needed to have “a more coherent understanding of legal ethics”.

He questioned “the mantra of the rule of law” as the basis for justifying lawyers’ actions, as there was no agreement as to what it meant precisely.

“I think we are better off approaching the issue in a different way. In a democratic society, we have chosen to resolve our differences through law and we have also agreed a clear and certain framework for regulating our relationships, be they personal or contractual.

“In our society, lawyers enable these mechanisms to function by resolving disputes or providing certainty in economic and other relations.

“We have also in common law countries agreed that disputes are best resolved by an adversarial process. That contest, before a court or other tribunal, we reason, is the best way to find the truth.

“It follows from these structures that if any part of society is excluded from access to lawyers, then they are excluded from fully participating in society itself.”

This meant that an approach where lawyers only acted for ‘good’ clients would “undermine society’s structure as a whole”.

He added: “I do not see why on this basis a distinction should be drawn between cases where a client’s liberty is at risk and other cases. All members of society are entitled to legal advice in any circumstances.”

This did not mean a law firm could not choose whom it acted for. “This may be for reputational reasons, competence reasons or because they fundamentally do not like or agree with the client.

“However, none of this is a regulatory issue and we need as a profession to be clear about that. So does the SRA.”

A second ethical issue was what lawyers did for clients. “For a long time, many in our profession thought that our sole duty was to our client and as long as it was legal we could do it.

“However, even if that was ever the case, the new reality is that the duty to a client has to be balanced by the duties a lawyer owes to uphold the administration of justice and the rule of law.

“That is the consequence of the role of lawyers and the way in which they serve society. They cannot do so if they are solely the fierce defenders of their client’s interests.”

Thus it would be wrong to draft a non-disclosure agreement that inhibited the work of the courts or regulators, or to advance an unmeritorious claim in correspondence in order to achieve what no court would ever order.

“However, these issues are very fact dependant. This is particularly because we operate in a common law adversarial system. We are entitled to advance claims on behalf of our clients which are arguable, but think they may not succeed. That is because our client is entitled to have their rights determined by a court…

“It follows that if the SRA is too aggressive in this area then it may inhibit the bringing of claims and undermine the very administration of justice it is its purpose to uphold. As will all things in life it is about getting the balance right.”

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