What may Zahawi’s lawyers have got wrong?

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Guest post by Richard Moorhead, professor of law and professional ethics at Exeter University

Moorhead: Instructions are not a ‘get out of jail free’ card

I hesitate to be another person to drawing attention to tax lawyer Dan Neidle’s allegations about Nadim Zahawi, but it seems to me the finer, but important, points about what he thinks the lawyers have got wrong have not been clearly identified in the commentary I have seen in several places.

Lawyers and the legal press tend to gloss over such allegations. As an example The Lawyer seemed as or more concerned with the propriety of Mr Neidle naming his opposing lawyer (he can, and there are really good reasons for so doing in this case) than really getting to grips with what it was he thought his oppo had done wrong .

So I think it’s worth being clear on what it is that Mr Neidle thinks Zahawi’s lawyers have got wrong because it speaks to the current debate on strategic lawsuits against public participation (SLAPPs), and the idea that SLAPPers (sorry, not sorry) are only exercising their access to justice rights.

It speaks also to a litigation culture which may (sometimes/often?) engage in (inappropriate) game playing, by which I mean threat making, and it points to a fundamental element of lawyers’ ethics which is, to my mind, not really appreciated by as many practitioners as it ought to be.

In broad terms, Mr Neidle’s concerns can be summarised as allegations that:

• Mr Zahawi’s lawyers made baseless allegations of libel (they were unarguable or lacked proper evidential basis);
• They failed to conduct proper due diligence on them (perhaps) and failed to withdraw them (when presented with Mr Neidle’s responses);
• Their assertion of confidentiality/without prejudice was baseless and therefore improper;
• They sought to intimidate him through an implied threat without legal foundation (one of their letters says it would be “a serious matter” if he went ahead and published the correspondence).

The central argument lurking beneath most or all of these is that making baseless points, knowingly or recklessly, may be misleading and therefore professional misconduct as well as an abuse of the lawyer’s role (unprofessional bullying in normal language).

The Solicitors Regulation Authority’s (SRA) warning notice on these matters (published after Mr Neidle began his crusade) suggests he has a point. This is not the same as saying his complaint will be upheld or that he is right, but we will hear about that in due course no doubt.

Common professional responses to such problems seek to shift the focus to ‘not impeding rights to access justice’ (an entertaining argument when made for powerful and rich individuals but not without merit simply for that reason).

And a professional justification is offered along the lines of saying (as the estimable David Allen Green does in his blog on the subject): “We do not know the extent to which Zahawi’s lawyers were acting under instruction – and although lawyers can advise, it is always the client who decides.”

As with the access to justice point, it is not a point without merit (instructions necessarily shape cases brought and the basis on which they are brought, not least because clients tell their lawyers their version of the facts and decide whether to pursue their cases) but in the 2013 case of R v Farooqi, the then Lord Chief Justice opined that lawyers, not their clients, were responsible for strategy and forensic decisions and he specifically deprecated the practice of relying on instructions for deploying inappropriate strategies.

On such matters, lawyers decide (even if they will not present it to the client like that) and bear professional responsibility. The SRA has emphasised similar points in its guidance on balancing duties in litigation and the like.

Applying the Farooqi doctrine is not a straightforward affair, which is why Mr Zahawi’s actual instructions may be relevant if not determinative, and whether his lawyers have failed to be sufficiently independent and responsible in their approach is a matter we await to hear on.

But it is really important, I think, for lawyers and others to understand that relying on instructions to do X or Y is not always a ‘get out of jail free’ card and may not be in this particular case.

The reason is, in part, that lawyers have a specific and central obligation to protect their independence, as well as to protect the rule of law and the administration of justice (alongside, of course, the obligation not to behave to mislead anyone). This is what, in part, lurks behind the SRA’s interest in SLAPPs, and also the Legal Services Board’s recent interest in lawyers’ ethics.