The stated purpose of the SRA is to protect the public by ensuring that solicitors meet high standards, and by acting when risks are identified. The solicitors’ profession includes single-solicitor practices and huge firms with a global presence and thousands of lawyers. Solicitors also work in the justice system, in government and within companies.
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What does the SRA have to do with SLAPPs
If you are the target of a SLAPP threat or legal action, a large chunk of your engagement with the claimant will be through their solicitors. So how the solicitors act will, in large part, shape how you experience the SLAPP.
As a result, solicitors play a key role in SLAPPs, both before and in court.
As the regulator for solicitors, the SRA oversees a range of regulations, guidance and codes of conduct to outline how solicitors and firms act. Everyone has the right to complain about the actions, behaviour and conduct of a solicitor or their firm and the SRA has a set of procedures to enable you to report an individual or a firm to them.
In November 2022, the SRA published a Warning Notice to help solicitors and firms understand their obligations and how to comply with them as they relate to SLAPPs.
At the same time, it published a set of guidance for how targets of SLAPPs can report to the SRA.
When should you report to the SRA
Solicitors and SRA-regulated law firms do not only owe duties to their clients. The SRA’s Standards and Regulations impose additional duties and wider public interest obligations override the duty to act in the best interests of any single client.
When taking legal action, solicitors and law firms should not engage in any form of abusive conduct, and this is something the SRA can investigate and take action on if it is reported to them.
A solicitor must act in a way that upholds all of the SRA’s principles, but in particular, if you are involved in a legal dispute, you can expect all solicitors to act:
With independence – a solicitor must be prepared to say no to their client if what their client is asking them to do conflicts with their wider responsibilities as a solicitor, for example, their duty not to take advantage of others.
With honesty – a solicitor should not mislead you or others (such as the courts) or knowingly allow you or others to be misled.
In a way that upholds public trust and confidence in the solicitors’ profession and in legal services.
If you think a solicitor has not acted in this way, you should tell the SRA. You do not need to prove that you are experiencing abusive litigation (including a SLAPP) to make a report.
How the SRA defines SLAPPs
Strategic Lawsuits Against Public Participation (SLAPPs) are a type of abusive approach to litigation. This could include the steps taken before legal action is taken, such as sending letters before a claim. The SRA are particularly concerned about SLAPPs as they are a threat to freedom of the press and the rule of law (a principle under which all persons, institutions and entities are equally subject to the law).
SLAPPs aim to prevent publication of matters of public importance. This could include:
campaign or advocacy material
investigative or campaigning journalism.
Victims are often activists, journalists, academics, or campaigners. The primary objective of a SLAPP is generally to harass or intimidate the victim to discourage public criticism of the claimant.
SLAPP threats do not usually reach court as the victim will often agree, in response to threatening legal letters, to end their investigation, change or remove a publication, or not publish at all. The victim is worried and wants to bring an end to the threats and may also want to avoid potentially ruinous costs. Whether or not the case reaches court, we can still investigate any concerns about SLAPPs.
Although SLAPPs are one type of abusive litigation, the SRA can take action against any form of abusive conduct relating to litigation or pre-action correspondence.
What should be reported to the SRA
In their guidance, the SRA outlines a number of examples which may indicate abusive conduct.
Allegations without merit
Solicitors should not be making allegations without legal merit. That means making claims that have no basis in law or would stand no chance of being successful if heard in court.
This could mean solicitors bringing claims having made insufficient enquiries of, or lack of consideration of their merits. Some solicitors might rely on your lack of legal understanding to bring a meritless claim in order to try to intimidate or pressure you into a certain course of action.
The SRA have had reports of solicitors threatening exaggerated adverse consequences or making threats of consequences which are not legally valid, for example threatening imprisonment in a case where this could never be an option, or making claims of cost consequences over and above what could be claimed.
Overly aggressive letters
Letters which are overly aggressive, intimidating or threatening, including threats intended to intimidate you into changing your intended course of action or avoiding seeking your own legal advice. You should expect correspondence to be set out in strong terms and that the solicitor or law firm will be trying to persuade you into a certain course of action. However, language should not be used with the intention of intimidating or harassing you.
Sending you excessive correspondence that is disproportionate to the issues in dispute and/or the number or nature of responses you have sent. Correspondence includes any type of communication such as letters, emails and phone calls.
Labels in correspondence
Telling you or indicating that there will be adverse consequences if you tell anyone else about the correspondence they have sent you. This can include labelling correspondence with ‘strictly private and confidential’, ‘not for publication’,’private and confidential’ or ‘without prejudice’ with the aim of misleading you into believing that if you tell anyone about the correspondence, there will be adverse consequences.
There can be valid reasons for using these labels, for example to ensure that correspondence is not read by an unintended recipient in a privacy claim, to disclose confidential information in order to disprove an intended article, or to enable negotiations to begin between the parties with a view to settling the claim. However, we expect solicitors to carefully consider why they are choosing to label correspondence in these ways and take particular care to explain the position to a recipient, particularly where they might be vulnerable or unrepresented.
You are always able to seek legal advice no matter how correspondence is labelled and the SRA’s warning notice makes it clear that a solicitor must not lead you to believe otherwise.
How to report to the SRA
The SRA has an online reporting form that anyone can use to report concerns. It also allows you to attach any relevant evidence you have.
The SRA can also take steps to protect your identity, enabling you to remain anonymous or provide information on a confidential basis. You should make this clear to the SRA when making your report to avoid information being disclosed as part of the SRA’s regulatory action.
Why should you make a report to the SRA
While the SRA cannot require a solicitor or law firm to compensate you if you have suffered harm or financial loss, they can take actions that can dissuade the individual or firm from continuing abusive litigation conduct. This includes imposing sanctions, such as fines, controlling how solicitors work, making orders to restrict people from being employed by regulated law firms, or even closing firms down with immediate effect.
These are strong inducements to encourage solicitors and law firms to avoid playing their part in SLAPP actions. If more robust regulatory action can encourage solicitors to step back, claimants may not find the UK such a hospitable place for their SLAPPs.
The SRA cannot regulate what they are not aware of. By reporting to the SRA, not only can the regulator stamp out bad behaviour, it will gain a clearer and more accurate picture of the SLAPP landscape, including the most prominent firms, the tactics deployed and the frequency of threats across different topics or issues. SLAPPs thrive in silence, so by making a report, you are robbing them of that and ensuring the SRA has the information they need to take action against solicitors and law firms – the enablers of SLAPPs in England and Wales.
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