Lawyers Covered - October 2023

Welcome to the latest edition of our Lawyers Liability & Regulatory Update, in which we look back over the last month at key developments affecting lawyers and the professional risks they face.

The BSB publishes new guidance on the use of social media and barristers' conduct in non-professional life

After a consultation on barristers' conduct in non-professional life, the BSB has published new Social Media Guidance and new Guidance on the Regulation of Non-Professional Conduct.

The BSB began the consultation as a result of its view that its existing guidance may not have always reflected the circumstances in which the BSB will have a regulatory interest in conduct that occurs outside professional practice, or the circumstances where it is already accepted in case law that it might be legitimate for regulators to intervene in non-professional life.

According to the BSB, the Guidance on the Regulation of Non-Professional Conduct seeks to clarify for barristers where the regulatory boundary lies when it comes to conduct occurring outside professional practice (i.e. it is not intended to plough new turf). It states that all times barristers must not behave in a way which is likely to diminish the trust and confidence which the public places in them or in the profession, and barristers must not do anything which could reasonably be seen by the public to undermine their honesty, integrity and independence. It repeatedly refers to the need to strike a balance between public interest in preserving confidence in the profession versus barristers' rights under the HRA and ECHR. In deciding whether they have an interest, the BSB plans to undertake a careful balancing exercise on a case-by-case basis.

Through the new Social Media Guidance, the BSB intends to help barristers understand their duties when using social media professionally and privately. According to the BSB's press release, it seeks to make clear that it is the manner in which barristers express their views that is more likely to concern the BSB, rather than the substance of that view. However, there may be cases where the views expressed mean that regulatory action is justifiable, for example dishonest or discriminatory content. It may be in the public interest for the BSB to get involved where conduct demonstrates that a barrister might interact negatively with certain groups in the future, or risks alienating clients and members of the public from the profession as a whole. According to the guidance, the BSB will also balance its interest in behaviour with a barristers' ECHR rights.

RPC will be publishing a fuller article on this shortly.

Check your (Legal Professional) Privilege!!

The High Court has overturned a decision of the Solicitors Disciplinary Tribunal in fairly brutal terms.

In SRA v Williams [case number 12360-2022] the SDT struck off Mr Williams for various acts of dishonesty whilst acting as a property Solicitor with Atherton Godfrey, including misuse of client funds.

The SDT dismissed an application by the SRA that the judgment be anonymised to the extent necessary to maintain the confidentiality of the clients involved (names, addresses, property details), citing the principles of open justice and relying on the judgment of Kerr J in the case of Lu v SRA [2022] EWHC 1729 (Admin).

The SRA appealed against that dismissal and in SRA v Williams [2023] EWHC 2151 (Admin) Julian Knowles J allowed the appeal, noting that the SRA's submissions were "soundly based" across three grounds of appeal.

First, the SDT had failed to have regard to the public interest in maintaining legal professional privilege (LPP) and the fact that LPP is a fundamental right which cannot be overridden where it applies. A claim for LPP does not involve the balancing of competing interests; it either applies or it does not. This was the SDT's "main error", which was "obviously wrong".

• Second, the SDT had misdirected itself as to the effect of the Lu decision. That decision was ("obviously") not a case about LPP.
• Third, the SDT had misdirected itself by referring to the lack of "exceptional hardship" or "exceptional prejudice" on the part of the clients if anonymity were not ordered. Those questions were irrelevant and "simply did not arise". The SDT was "plainly in error".

One hopes that the SDT will not fall into error again in relation to the importance of LPP in light of this helpful reminder.

SRA now managing SIF

Back in February 2023, we reported that the SRA, after resistance from the profession and the Law Society, had decided that it would no longer close the Solicitors Indemnity Fund (risking former partners and their estates being found personally liable for losses arising from post 6 year claims). The SRA announced that it had decided to bring SIF provision within its own regulatory arrangements and planned to take control of the fund from 1 October 2023, ensuring the provision of insurance cover after expiry of the compulsory 6 year run off period for solicitors' professional indemnity policies.

At the time there was an expressed concern that the SRA did not have the expertise and resource to run an insurance scheme, manage the capital or handle claims.

To address that concern the SRA have now appointed external experts in the form of London insurance services provider, Polo Works, on an 18 month contract to handle new claims and work with existing SIF panel firms handling existing open claims to ensure a smooth handover.
The plan is to ensure that the SRA run scheme is run as efficiently and effectively as possible.

Guidance on the SRA web page now explains that the SIF applies once the 6 year run off period has expired and also covers claims made during, or which relate to, the period a law firm was covered by the SIF master policy. The guidance provides an explanation to a potential claimant as to how they can bring a claim and explains that the SRA aim to be fair, consistent and transparent when considering whether to make a payment based on its assessment of legal liability using a straightforward application process and a fair decision. The SRA website also contains a link to a new claim form with notes on how to complete that.

At the current date, the SRA has resisted pressure from the Law Society to impose a levy on the profession at this stage to raise funds for the SIF but the Law Society still believe that it is likely that a levy may well have to be made to ensure sufficient funds are held.

Hong Kong – Competency of Advocates

In SKA v TI [2023] HKFC 176, a three-day court hearing in May 2023 to decide whether a father could relocate the family's two children from Hong Kong to England had to be adjourned because the barrister representing the mother at the hearing was apparently not sufficiently experienced to conduct cross-examination in such a case. The barrister was one of two barristers representing the mother; the more experienced barrister had been unable to attend the first day of the hearing due to illness. Both barristers had accepted instructions to act for the mother and their names appeared on the written legal submissions made on her behalf.

The hearing was eventually reconvened in July 2023 and the judge was unimpressed with the delay; particularly, given that the court's paramount concern was the best interests of the children. The judge directed that a copy of his judgment be sent to the Hong Kong Bar Association and the Law Society of Hong Kong "for their attention and any necessary follow up action they considered appropriate". In a clear warning to barristers, the judge stated:

"Members of the Bar should only accept briefs or instructions from solicitors to handle work within their field of expertise and [are] expected to be competent to handle the cases to the best interests of the clients that they represented."

The judge also made a point of reminding solicitors that when choosing a barrister to represent a client their duty is to recommend an advocate with an appropriate level competence and experience ("The Hong Kong Solicitors' Guide to Professional Conduct", Principle 12.03).

The judgment has received quite a lot of attention and serves as a warning to both branches of the legal profession in Hong Kong. For family law practitioners, the judgment also provides a detailed and interesting consideration of the legal principles applicable in so-called "relocation cases".

Additional contributors this month: Catherine Zakarias-Welch, Sally Lord & Aimee Talbot

Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice. We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date. You should seek legal or other professional advice before acting or relying on any of the content.