Correspondence: Firms not misuing labels
Law firms’ conduct of cases involving privacy and reputation appears to have improved over the past 18 months, according to new research by the Solicitors Regulation Authority (SRA).
Though defendant firms and in-house media lawyers said they had seen aggressive behaviour from some claimant firms, they did not believe they needed to report it to the regulator.
There was also progress in claimant lawyers not using inappropriately labels on correspondence, such as ‘private and confidential’ and ‘not for publication’.
The thematic review was a follow-up to the SLAPPs warning notice the SRA published in November 2022. It saw the SRA visit 20 law firms handling reputation management matters, speaking to the head of department and, in 18 firms, a junior fee-earner as well, as well as review two files at each practice. It met with lawyers working in-house at media organisations too.
However, none of the firms were ones the SRA is currently investigating for potential misconduct over SLAPPs and it stressed that the findings only represented a “snapshot” of what was happening.
Strategic lawsuits against public participation (SLAPPs) are abusive pieces of litigation aimed at silencing legitimate critics that have been high on the government’s agenda since Russia invaded Ukraine.
The SRA said it saw indicators of a SLAPP on one of the 40 files it reviewed, “where the conduct of the firm acting on the other side appeared to include, excessive and disproportionate correspondence, and potentially pursuing a meritless claim. We are investigating this matter”.
One firm also had a client who had received judicial criticism for deliberate dishonesty, but this was prior to the firm’s instruction. “We are investigating the conduct of the firm which previously acted for that client.”
On conduct, some defendant firms and in-house lawyers said there had been an increase in claims/requests with a data protection element, such as supplementing defamation claims with subject access requests and allegations of data breaches.
“Over half of defendant firms and all in-house media lawyers said they had seen aggressive behaviour from some claimant firms, although they did not believe the behaviour was sufficiently serious to report the matter to the SRA.
“Several heads of department at claimant firms also noted issues with the behaviour of in-house media lawyers – for example, giving unreasonable deadlines and raising defences with limited prospects of success. However, none have reported their concerns or considered it necessary to do so.”
None of those interviewed had reported a SLAPP over the past 18 months, although two firms had made reports about inappropriate conduct of litigation.
The SRA said reporting potential breaches remained a concern: “Three firms did not make a report to us about the conduct of other firms when they now think they should have done. We have discussed these matters with them. We are investigating three matters.”
Around half of the lawyers said the warning notice had “positively impacted” on their day-to-day work, such as by prompting earlier discussions with the client about regulatory obligations, while half of the heads of department said they had also changed their working practices, “using a softer tone/language when sending out letters”.
The SRA said: “Most in-house media lawyers said that although issues remain, they had noticed some positive changes in law firm behaviour following publication of our warning notice. This included fewer instances of firms inappropriately labelling correspondence.”
Most lawyers said they now provided additional information to a recipient when labelling correspondence, particularly where they may be vulnerable or unrepresented.
Heads of department said they advised clients that such labels could not unilaterally impose a duty of privacy or confidentiality where one did not already exist.
“They also warn clients of the risk that a recipient might properly publish correspondence which is not subject to a pre-existing duty of confidence or privacy. Heads of department told us that this was a crucial part of the process as they had experience of letters being published.”
None of the labels used in the files the SRA reviewed were used inappropriately. “Where the recipient was unrepresented, firms made it clear in correspondence that they should seek legal advice.
“On two files, the recipient said they wished to publish the letter received and the respective firms did not deter them from doing so.”
There was “a good standard of training on SLAPPs”, even if most firms did not have formal policies on how to identify and deal with them, although there were concerns around the lack of processes and controls on the use of public relations companies and private investigators.
The SRA said it would soon publish an updated version of the warning notice.
Chief executive Paul Philip said: “It is good to see that during our review we found good understanding of SLAPPs and widespread awareness of our guidance. But we also identified several areas where there is room for improvement.
“As the professional regulator we must not be complacent so we will continue to update our advice to the profession.”
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