Regulators “must warn lawyers against taking advantage of LiPs”

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Vulnerable women: Concerns about ethical misconduct

Legal regulators must warn lawyers that they will face action to stop them unethically taking advantage of vulnerable litigants, a charity has urged.

Olive Craig, senior legal officer at Rights of Women – which provides free legal advice to women and girls who have experienced violence and abuse – said she was particularly concerned when the women involved were litigants in person (LiPs).

“We’re certainly concerned about the way in which lawyers understand and interpret their duties to the courts, the parties and the public.

“Too often they can hide behind the idea of ‘these are my instructions’ and think that justifies all kinds of behaviour. There are limits as to when that is a valid response to concerns about ethical conduct.”

Ms Craig, a solicitor, was recently invited to address the Legal Services Board’s main board about how regulation can aid access to justice.

Chair Alan Kershaw wrote in a blog that this led to a “sobering discussion about professional ethics and lawyers’ conduct”, which had left the board “deeply concerned about the aggressive litigation tactics that some unrepresented women faced”.

Speaking to Legal Futures, Ms Craig said: “We are lawyers and we realise the issues are not always clear-cut, but we’ve seen some behaviour on the wrong side of the line.”

Unethical behaviour included applying for court orders as a litigation tactic, using unregulated psychologists as single joint experts without making that clear to the court, and drafting court orders in a way which “actively misinterpreted” them.

In one case, a lawyer applied for a transfer of residence for a child on behalf of a father who often worked abroad and was not in a position to take over full-time care. The application was used in correspondence but “never seriously pursued”.

Ms Craig said it was “really concerning” that a group of unregulated psychologists was producing assessments of very vulnerable parents and children.

“It is completely unreasonable to expect an unrepresented party, especially if they face multiple disadvantages, to present good legal arguments about the appointment of an expert.”

A further example of the power imbalance facing LiPs was the fact that only solicitors and barristers were allowed to email judges directly and only lawyers could draft court orders.

Ms Craig said she had seen examples where barristers used both the recitals and the order itself to present the case in a way that was more “advantageous” to their clients, or even in a way that “actively misrepresented” the situation.

“Sometimes they don’t actually reflect what the judge said at all. Unrepresented parties don’t understand the significance of this and sometimes don’t get the order until two months later.”

Ms Craig said the courts were too “bogged down” by lack of staff and delays to “grapple with the wording of orders”, even if it was important and later featured in correspondence.

“We think it really important that lawyers are made more aware of the impact of their behaviour and that regulators will take action if they ignore their duties to the court and the public.

“If regulators are willing to take action and lawyers know it, they can fall back on regulators to say: ‘No, I’m not going to behave in a way that takes advantage of this vulnerable person.’

“It would be good to see all the regulators saying they are willing to take action if necessary.”

Mr Kershaw said Ms Craig had given “powerful testimony”, adding: “We are committed to ensuring regulation supports ethical decision-making and that any weaknesses in the regulatory framework are addressed.”