Briefing Regulatory October 2014 Solicitors trying to do the best for their clients may get struck off if they mislead the Court In-house solicitors need and want to do the best for their internal his duty to that client, it ruled that he did have other options. Caught clients. But this can conflict with their duties to the court in between his duty to the court and his duty to the journalist, Brett a dispute or prosecution. What happens if a solicitor obtains should not have misled the court; rather, he should have sought the potentially damaging privileged information but is asked to journalist’s consent to waive the privilege. Alternatively he should present a positive case for their internal client in court? If they give have corrected any misleading impression given by the witness misleading evidence – the answer is they may be struck off. statement, making it clear that the process it showed was only a way Alastair Brett was formerly legal manager at Times Newspapers Ltd. The Leveson inquiry considered Mr Brett’s actions in connection with a 2009 story in The Times which revealed the author of an anonymous blog entitled ‘Nightjack’, chronicling the life of a police officer. The article was based on information gained by a in which the identity of ‘Nightjack’ could be discovered rather than a definitive account of what actually occurred. If he could not obtain the waiver of privilege then he should either have taken the position that he was not prepared to tell the court how the author’s identity was discovered or declined to act for the journalist. reporter hacking the email account of the police officer who wrote While the court concluded that Brett had not ‘knowingly allowed the the blog. The journalist involved went to Brett before the story’s court to be misled’, it did find that he had still breached rule 11.01 by publication and admitted to the hacking. Brett advised him to work recklessly allowing the court to have been misled, and by extension back and see if the author’s identity could be pieced together using had failed to act with integrity in accordance with rule 1.02. publically available information. Brett, subsequently, had to arrange witness statements in the legal action brought by the police officer. In those statements there was no mention of the hacking and Brett’s communications with the officer’s lawyers also denied the hacking. He consequently allowed the court to believe that the officer’s identity had been uncovered by legitimate means. This was exposed by the Leveson inquiry and the SRA referred Mr Brett to the Solicitors Disciplinary Tribunal (SDT). The SDT found that he had breached the Solicitors’ Code of Conduct, having knowingly allowed the court to be misled (rule 11.01), and having failed to act with integrity (rule 1.02). The SDT suspended Brett for 6 months and ordered him to pay costs of £30,000. Brett v The Solicitors Regulation Authority [2014] EWHC 2974 (Admin) Brett appealed on the basis that the SDT had not had proper regard for the legal privilege attached to the information he had received from the journalist. All Brett’s knowledge had come from privileged communications with his client – in such circumstances Conclusions This situation can be difficult for an in-house lawyer, especially taking into account the obligation to act in the best interests of each client. It is difficult to imagine a situation where a client’s case is helped by declining to provide evidence on an important element of that case. Generally, when lawyers are caught between a legal privilege duty to a client and a duty not to mislead the court, they are faced with a choice between obtaining a waiver of privilege from the client or by declining to act for them further. Either way that can be a difficult position. Contacts Tim Davies and Tim Pope are members of Burges Salmon’s regulatory team. Tim Pope Legal Director +44(0)117 939 2230 [email protected] how could he pass that on to the court? Tim Davies Trainee Solicitor On appeal, although the High Court agreed that Brett believed that +44(0)117 307 6992 [email protected] revealing his client’s admission to the court was incompatible with Burges Salmon LLP, One Glass Wharf, Bristol BS2 0ZX Tel: +44 (0) 117 939 2000 Fax: +44 (0) 117 902 4400 6 New Street Square, London EC4A 3BF Tel: +44 (0) 20 7685 1200 Fax: +44 (0) 20 7980 4966 www.burges-salmon.com Burges Salmon LLP is a Limited Liability Partnership registered in England and Wales (LLP number OC307212) and is authorised and regulated by the Solicitors Regulation Authority. A list of members, all of whom are solicitors, may be inspected at our registered office: One Glass Wharf, Bristol BS2 0ZX. © Burges Salmon LLP 2014. All rights reserved. Extracts may be reproduced with our prior consent, provided that the source is acknowledged. 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