The number and “shamelessness” of SLAPPs has grown but there has been no disciplinary action taken against the lawyers responsible for how they are run, a major conference was told yesterday.
At the same time, the Solicitors Regulation Authority (SRA) revealed that the first two cases alleging abusive litigation conduct are to be heard at the Solicitors Disciplinary Tribunal (SDT).
The conference on strategic lawsuits against public participation was organised in London by the Foreign Policy Centre, the Justice for Journalists Foundation and the International Bar Association’s Human Rights Institute.
In a session on regulatory efforts to address the problem, Charlie Holt, co-chair of the UK Anti-SLAPP Coalition, said: “We have seen a growth in the number of SLAPPs and we’ve seen a growth in the shamelessness of SLAPPs but we’ve seen no disciplinary action taken against the lawyers who are largely responsible for the arguments and tactics that have been advanced.”
He stressed that he was not identifying lawyers with their clients: “What we’re trying to do is to uphold the duty of a lawyer to act with integrity and promote the proper administration of the law…
“SLAPPs represent an improper use of the court process – they are by their very definition abusive. Lawyers should not allow themselves to become instruments of this abuse.”
Mr Holt, European head of Global Climate Legal Defence, described the Solicitors Regulation Authority’s (SRA) SLAPPs warning notice, issued a year ago, as an “important step” but said he wanted to see the principles it set out “tested and applied to fully disincentivise the use of SLAPPs and SLAPPs tactics”.
He added: “We still see in large parts of the legal profession a certain amount of complacency and even denial.”
Juliet Oliver, the SRA’s deputy chief executive and general counsel, told delegates that the regulator was currently investigating around 50 cases relating to allegations of SLAPPs and six more on abusive litigation tactics in a “different factual context”.
Two abusive litigation cases have now been referred to the SDT, while a “handful” of SLAPPs cases have reached the end of the investigation stage and action is being considered.
A further 19 SLAPPs cases have been closed without action, although in some of them the SRA issued formal advice to highlight areas where the firm or lawyer may have acted inappropriately – such as through their tone or language – but not to the point of misconduct.
Ms Oliver added that the SRA has just finished the field work for a follow-up to the thematic review of conduct in disputes it published in February and is also looking to update the SLAPPs warning notice.
The initial findings indicated that “the levels of awareness of our obligations are improving and demonstrate a real shift from the previous thematic review” – the vast majority of lawyers spoken to had received training in the last year.
“We heard that the warning notice is impacting day-to-day work and heard of changes to working practices, for example much more caution around the use of labelling correspondence [such as ‘without prejudice’ or ‘strictly private and confidential’].”
In-house media lawyers had also reported “positive changes in claimant law firm behaviour”.
Ms Olvier urged delegates “not to read too much” into the thematic review not finding evidence of SLAPPs; that was not the purpose of the review and it excluded firms that the SRA was already investigating for them.
Mr Holt said this was important, as it had been “misrepresented” by some as showing there was no problem.
“We see time and time again SLAPPs being brought by the same law firms,” he said, suggesting existing investigations into them was why the thematic review did not pick up on SLAPPs.
Richard Orpin, director of regulation and policy at the Legal Services Board, welcomed the Economic Crime and Corporate Transparency Act 2023 – which gives the courts new powers to deal with SLAPPs in relation to economic crime – but said it “only gets us so far”.
He explained: “A good SLAPP will never make it to court in the first place. Much of the harm that arises from their use happens well before a case ever gets before a judge.
“In our view, this adds further weight to the argument that there is a role of regulation to complement the legislation that’s recently been enacted.”
Sam Townend KC, vice-chair of the Bar Council, defended the role of the cab-rank rule in relation to acting for oligarchs and the like pursuing claims, pointing to the “fundamental right to be advised and to representation”.
“But if it is indeed a case that’s not just aggressive but where it crosses the line into being misleading, an abuse of process or being used for a collateral purpose, then we would be professionally embarrassed and we would have to withdraw.”
Mr Orpin observed that it was “at the discretion of the barrister to choose how they represent someone who is next in line [at the rank]. And that is an area where questions are ripe about ethical conduct”.
Session chair Baroness Stowell, chair of the House of Lords communications and digital committee, agreed, saying that lawyers have a duty to uphold the profession’s reputation “by how they go about their work”.
Mr Townend said that, once proceedings were live, the court wanted to see “a reasonable approach” and that being overly aggressive was counterproductive.
Mr Orpin countered: “Wouldn’t it be good for the interests of justice and society if, rather than waiting for a judge to call a barrister out on the way they were behaving, there were better ethical standards and rules and guidance in place that made sure that line was never crossed in the first place because it was built into training and the culture of the profession that you act in a way that is in the best interests of justice being served?
“So there is a role for regulation – it may not be hard rules, it may be guidance, but there is a space there that needs to be filled with something around driving up standards of ethical conduct so we don’t have to have these debates about who’s crossed the line and who hasn’t.”