Gill: Prosecution summarily dismissed
Doubts about a client’s truthfulness is not a good reason for solicitors to stop acting, the Solicitors Disciplinary Tribunal (SDT) has stressed.
“Solicitors were not ‘hired guns’, advancing any case regardless of propriety,” it said. “Equally, they were not required to withdraw from representation whenever doubts arose as to a client’s credibility or prospects.”
The dividing line was knowledge, it went on. “A solicitor must not knowingly advance false instructions or assist in an abuse of process, but absent such knowledge, the solicitor was entitled and often obliged to continue to act.”
The tribunal drew an analogy with criminal defence solicitors. “Such solicitors routinely acted for individuals accused of serious criminal conduct, often in circumstances where the solicitor could not know whether the client was telling the truth.
“Provided the solicitor did not knowingly advance a dishonest case or mislead the court, representation was both proper and necessary. That principle was fundamental to access to justice and the administration of the legal system.
“The tribunal considered that, essentially, the same principle applied here. To require solicitors to determine, at their peril, whether a client’s position might later prove to be untrue would place them in an untenable position and would risk undermining the right to legal representation.”
The SDT made the comments in its written reasons for its decision last month to uphold an application by Claire Gill, a partner at top media firm Carter-Ruck, to summarily dismiss an allegation that she made an improper threat against an investor in cryptocurrency OneCoin, who had tried to warn others that it was a scam.
OneCoin is estimated to have cost investors around the world at least $4bn, while Dr Ruja Ignatova, dubbed the ‘CryptoQueen’, is one of the FBI’s 10 most wanted fugitives.
Though the SDT held in September that the Carter-Ruck retainer was engaged “in furtherance of fraud” by OneCoin and Dr Ignatova, it decided in December that Ms Gill did not know this at the time – suspicion was not enough.
The Solicitors Regulation Authority (SRA) is appealing the decision.
The SDT – which was chaired by president Alison Kellett – explained that the SRA’s central allegation was that, in sending the letter, Ms Gill knew that the threatened defamation proceedings would not in fact be pursued and that the letter was sent for an improper purpose.
This was was to reassure members of OneCoin and to convey a public relations message that the company was ready and willing to demonstrate before a court that allegations of fraud were untrue.
But at the time (April 2017), it was not clear that OneCoin was a fraud. “What was known was that adverse publicity was increasing and that criminal investigations had commenced.
“Such circumstances did not prevent a company or individual from seeking to protect its reputation, including by threatening or commencing defamation proceedings.”
The documents showed Ms Gill’s advice was “measured, professional and conscientious”.
The SDT went on: “She asked appropriate questions of her client and identified matters that would require further information before litigation could be taken forward. At the time the letter before action was sent, that information had not yet been provided, and [she] was continuing to investigate the position.
“The documents showed that she acted on explicit client instructions and had no reason at that stage to disbelieve them. Suspicion was not equivalent to knowledge, and a solicitor was not required to reject instructions absent evidence that they were false.”
The SDT noted that it was only after the letter had been sent that counsel’s advice was received, following which Ms Gill recommend that litigation should not be pursued.
“That recommendation was consistent with responsible professional conduct and contradicted any suggestion that she knew, at the time the letter was sent, that proceedings would never be issued.”
The letter itself was “moderate in tone” and in line with standard letters before action used in defamation.
“It acknowledged the existence of a criminal investigation and expressly stated that it was not intended to stifle legitimate debate. There was nothing in its content or language that could properly be characterised as misleading, abusive, or improper.”
The SDT said it was also assisted by settled legal authority that a solicitor did not act improperly merely by representing a client whose case was weak or controversial, provided the solicitor did not knowingly assist in an abuse of process, while a solicitor was not required to investigate or verify the truth of factual instructions before advancing them, even where doubts existed.
The tribunal highlighted too the procedural history. The investigation commenced in May 2020 and more than three years later the investigating officer recommended closure without further action.
That recommendation was overridden, leaving a single, narrowed allegation.
“The delay and continued pursuit of the allegation imposed unnecessary burden and stress on [Ms Gill] and weighed heavily in the assessment of proportionality.”
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