With duties owed to the courts, clients, third parties and the wider public interest, it is not difficult to see why the ethics of litigation can be such a difficult area for lawyers, and one which the SRA classes as a priority risk in the latest Risk Outlook.
Misusing legal proceedings to gain an unfair advantage, either for the benefit of the client or the solicitor, is clearly unacceptable. Litigation is one of the more visible aspects of the law, and so engaging in abusive litigation has the potential to lose the public’s trust and confidence in the legal system.
Examples of abusive litigation include:
– taking unfair advantage of a third party by, for example, exploiting procedural errors;
– misleading the court with information given;
– incurring costs that are not manageable for the client’s rival; and
– using the threat of litigation to force a settlement.
The SRA also identifies acting in a way other than in the best interests of the client as a risk, such as:
– forcing or pressuring a client into litigation with little or no merit; and
– failing to make potential risks and costs clear to the client from the outset.
Walking the line: Balancing duties in litigation is essential reading for all firms and litigation practitioners. It goes into more detail about how these poor behaviours occur, and draws on examples of the challenges that solicitors face when trying to balance their duties to more than one party.
The public is entitled to expect high ethical standards, and this is reflected in the SRA’s approach to the topic.
If you would like confidential advice about your duties in litigation, please feel free to contact us.