Oliver: Promoting ethical behaviour
In-house solicitors have been pressured to misuse legal professional privilege as a way to suppress the proper disclosure of information, the Solicitors Regulation Authority (SRA) has said.
New advice from the regulator on privilege has been published as part of a suite of guidance for in-house solicitors, the rest of which it published in draft in March for comment.
Part of the feedback, the SRA said this week, was that practitioners needed “clarification on confidentiality and legal professional privilege”.
The new guidance sets out the key elements and cautions that “we have seen examples where the label of privilege has been used to wrongly suppress the disclosure of information, where the information can and should properly be disclosed.
“And where privilege has wrongly been asserted solely on the basis that lawyers have been copied into correspondence.
“This could be because of pressure brought to bear on in-house solicitors by their client, or due to complacency or even deliberate misconduct by the in-house solicitor.”
The SRA stressed that solicitors “should not withhold information in these circumstances”, notwithstanding instructions from their client or that this might be in their own interests.
“Our principles make clear that solicitors must act with independence and integrity. Solicitors are also officers of the court: They must not mislead the courts or others by their own acts or omissions or by being complicit in those of others, and must uphold the rule of law.
“These and other principles which safeguard the wider public interest take precedence over an individual client’s interests.”
Where solicitors are facing pressure to misuse privilege, the guidance says they should first aim to have “a constructive dialogue where you can”.
If this does not work, “you will need to resist being pressured or persuaded to act contrary to your regulatory obligations. You should consider reporting the conduct or behaviours you have experienced”.
The finalised documents also include guidance on reporting client wrongdoing and on the in-house solicitor’s obligations to report to the SRA, along with how to identify the client when working in-house and internal investigations.
There is also guidance for employers on a solicitor’s professional obligations, together with ‘key points’ specifically for governing boards, chief executives and senior officers.
The guidance is a response to an SRA review which found last year that in-house lawyers were generally able to withstand pressures on their independence but a minority reported demands to act unethically.
It also reflects the spotlight thrown by the Post Office scandal on the conduct of in-house lawyers.
The SRA said that, since publishing the drafts, it has consulted with its virtual in-house solicitor reference group, and engaged the wider in-house community through surveys, roundtables, direct discussions and more than 50 formal responses to the drafts.
Other changes include more practical examples, resources and checklists and more information on acting for third parties and managing conflicts of interest.
SRA general counsel and deputy chief executive Juliet Oliver said: “These documents reflect the unique challenges and issues that in-house solicitors encounter in their day-to-day roles and aim to support solicitors in meeting these, and to highlight the value that in-house solicitors can bring to organisations in promoting ethical behaviour and managing legal risk.”
There are around 35,000 in-house solicitors in England and Wales.
Leave a Comment