A question for solicitors regarding confidentiality

[belly2002]

No problem.

[IanA2]

I have to say the general silence on this one makes me feel like I've farted in a lift.

If any legal sorts have an opinion that they would like to express anonymously/privately, I'd be very grateful.

Health permitting, I'm approaching the SRA again next week and really would be grateful for some kind of keystone to help.

I have had some opinions already but they are from folks close to the action and possibly, in the nicest way, a wee bit biased. I'm looking for uninvolved cold views.

Many thanks.

[anonymous-user]

Your question has already been answered. The solicitor owes professional duties to the client, not to the funder.

[anonymous-user]

IanA2 said:

IanA2 said:

A separate question, but in the same (ish) area.

Supposing an employer charges a firm of solicitors with the task of getting rid of an employee. For the sake of this example let us suppose that the solicitors concerned accept the task and go about it with vigour using all sorts of tricks and strategies designed to get rid of said employee. For example, by way of a creative, but sham, redundancy situation.

In these circumstances, let us suppose that the employee then takes the matter to an ET. Clearly the employer will attempt to defend the claim, but what interests me is how the solicitor instructs the barrister.

I'm presuming they don't say, "Well we did everything we could to get rid of X" and come clean regarding the full extent of their involvement. Rather, I imagine they will paint a picture that they know to be both false and incomplete. So my question/issue is this; in this hypothetical situation, are the solicitors breaking any professional code in behaving in this manner, or is it just a another day in the life of an employment lawyer?

Thanks.

Disappointed not to have had any input on the above.

Perhaps I could reframe the issue.

A public sector employer retains a firm of solicitors to act effectively as their HR department. Said solicitors are given instructions to get rid of an employee. They embark on a strategy, some of it fictitious, and all of it with the sole purpose of ridding their client of "a problem". They are successful and the employee is sacked.

The employee issues proceedings.

The solicitors who engineered the departure are of course retained to fight the case.

Barrister X is then briefed, by the solicitor, on behalf of their client to defend the case. The solicitor is somewhat economical with the actuality in so briefing as the extent of their involvement would, I would have thought, send any honest barrister running to the hills.

So my question is this. In acting as the firms HR and hiding behind "legal privilege" and not disclosing their full involvement, are they acting unethically? Or is it that am I just being naive as that this is an everyday story of modern life in the public sector?

The fact that the solicitors advised in relation to the dismissal is neither uncommon nor unethical.

How do you know what the solicitors told the barrister?

[IanA2]

Breadvan72 said:

Your question has already been answered. The solicitor owes professional duties to the client, not to the funder.

That was question one, which in fact, according to the SRA is not quite that clear cut. When I'm confident I have enough written evidence, which I'm working on, I will pursue the matter formally although I suspect there's too much wiggle room for a satisfactory resolution.

The second question is more complex, and which I feel, rightly or wrongly, will oscillate around normative versus pragmatic practice.

Thanks

[IanA2]

Breadvan72 said:

IanA2 said:

IanA2 said:

A separate question, but in the same (ish) area.

Supposing an employer charges a firm of solicitors with the task of getting rid of an employee. For the sake of this example let us suppose that the solicitors concerned accept the task and go about it with vigour using all sorts of tricks and strategies designed to get rid of said employee. For example, by way of a creative, but sham, redundancy situation.

In these circumstances, let us suppose that the employee then takes the matter to an ET. Clearly the employer will attempt to defend the claim, but what interests me is how the solicitor instructs the barrister.

I'm presuming they don't say, "Well we did everything we could to get rid of X" and come clean regarding the full extent of their involvement. Rather, I imagine they will paint a picture that they know to be both false and incomplete. So my question/issue is this; in this hypothetical situation, are the solicitors breaking any professional code in behaving in this manner, or is it just a another day in the life of an employment lawyer?

Thanks.

Disappointed not to have had any input on the above.

Perhaps I could reframe the issue.

A public sector employer retains a firm of solicitors to act effectively as their HR department. Said solicitors are given instructions to get rid of an employee. They embark on a strategy, some of it fictitious, and all of it with the sole purpose of ridding their client of "a problem". They are successful and the employee is sacked.

The employee issues proceedings.

The solicitors who engineered the departure are of course retained to fight the case.

Barrister X is then briefed, by the solicitor, on behalf of their client to defend the case. The solicitor is somewhat economical with the actuality in so briefing as the extent of their involvement would, I would have thought, send any honest barrister running to the hills.

So my question is this. In acting as the firms HR and hiding behind "legal privilege" and not disclosing their full involvement, are they acting unethically? Or is it that am I just being naive as that this is an everyday story of modern life in the public sector?

The fact that the solicitors advised in relation to the dismissal is neither uncommon nor unethical.

How do you know what the solicitors told the barrister?

The matter revolves around a little more than advising I think. They have effectively strategised the campaign, undertaken some fairly dodgy manoeuvres, ignored & subverted some statutory rights and rid the employer of their problem. They have run as a sub-office of the employer and are accordingly behind the curtain of privilege.

My point regarding the barrister, is that if the solicitors did come clean as to the extent of their involvement, I do not think a barrister would be able to accept their case. One has, therefore I believe they have been economical with the extent of their involvement.

As I said before, perhaps this is an everyday story of career destruction and I am just a tad naive.

[anonymous-user]

Privilege would apply to any dealings between lawyer and client anyway. If an employer wants to have a law firm handle its HR, it can. Frankly, you would do better fighting your case on its merits rather than obsessing about your opponent's lawyers. If anything unlawful was done, ask a tribunal or court to rule on it.

[IanA2]

Breadvan72 said:

Privilege would apply to any dealings between lawyer and client anyway. If an employer wants to have a law firm handle its HR, it can. Frankly, you would do better fighting your case on its merits rather than obsessing about your opponent's lawyers. If anything unlawful was done, ask a tribunal or court to rule on it.

I understand privilege. In this instance I think it is being abused. I am interested in the relationship between the instructing solicitor and the barrister, and what professional obligations of candour and full disclosure the solicitor has to the barrister.

I don't think I'm obsessing, sorry if you think I am. The case will be fought on merits and a ruling will be made. I am sure however that you are aware of the difficulties inherent in PIDA which tends to concentrate of the sequelae of raising safety issues, and not the cause.

Hopefully your friend Sir Robert will address this problem in the process when his Freedom to Speak Up Review is concluded and published.

Meantime I'll let you know what the SRA have to say.

[williaa68]

The solicitor and barrister both owe duties to the court, but there isnt a "duty of full disclosure" between solicitor and barrister. If i choose to send a brief to bredvan, he advises on the brief he gets. If the brief he gets is cr*p or incorrect, the client's remedy is to sue me in negligence. It is common for solicitors to brief counsel to advise on a set of facts or circumstances without naming, in the example here, the employer, precisely to avoid a conflict of interest arising.

[IanA2]

williaa68 said:

The solicitor and barrister both owe duties to the court, but there isnt a "duty of full disclosure" between solicitor and barrister. If i choose to send a brief to bredvan, he advises on the brief he gets. If the brief he gets is cr*p or incorrect, the client's remedy is to sue me in negligence. It is common for solicitors to brief counsel to advise on a set of facts or circumstances without naming, in the example here, the employer, precisely to avoid a conflict of interest arising.

And candour...?

[anonymous-user]

[quote=IanA2


Barrister X is then briefed, by the solicitor, on behalf of their client to defend the case. The solicitor is somewhat economical with the actuality in so briefing as the extent of their involvement would, I would have thought, send any honest barrister running to the hills.

So my question is this. In acting as the firms HR and hiding behind "legal privilege" and not disclosing their full involvement, are they acting unethically? Or is it that am I just being naive as that this is an everyday story of modern life in the public sector?
[/quote]

The fact that the solicitors advised in relation to the dismissal is neither uncommon nor unethical.

How do you know what the solicitors told the barrister?

[/quote]


As I said before, perhaps this is an everyday story of career destruction and I am just a tad naive.

[/quote]


What the other side's solicitors told the barristers isn't really relevant. It would take a fairly unusual set of circumstances for a Barrister to "run for the hills". A barrister will defend a losing case to the best of his ability if that is what the client wants.

You can ask for full disclosure of all the relevant documents well before you get to trial.

[IanA2]

desolate said:

[quote=IanA2


Barrister X is then briefed, by the solicitor, on behalf of their client to defend the case. The solicitor is somewhat economical with the actuality in so briefing as the extent of their involvement would, I would have thought, send any honest barrister running to the hills.

So my question is this. In acting as the firms HR and hiding behind "legal privilege" and not disclosing their full involvement, are they acting unethically? Or is it that am I just being naive as that this is an everyday story of modern life in the public sector?

The fact that the solicitors advised in relation to the dismissal is neither uncommon nor unethical.

How do you know what the solicitors told the barrister?

As I said before, perhaps this is an everyday story of career destruction and I am just a tad naive.

What the other side's solicitors told the barristers isn't really relevant. It would take a fairly unusual set of circumstances for a Barrister to "run for the hills". A barrister will defend a losing case to the best of his ability if that is what the client wants.

You can ask for full disclosure of all the relevant documents well before you get to trial.

_____________________________________________________________________________________________________________________

Part of my concern is that there will not be full disclosure as the strategies and shenanigans will be privileged. Had the matter been dealt with by HR, then yes, then disclosure would be revealing.

Let me put my concern about briefing another way.

Having got rid of the "problem employee" does the solicitor say to the barrister, "we think the claimant has well founded detriment claims, we know this because we fabricated them and the employer implemented them with relish".

Or do they say, "the claimants claim is weak as our client acted throughout with integrity and implemented their policies throughout in utmost good faith".

It seems to me that if the solicitors do have a duty to the court then it should be the former, but I am pretty certain it will be the latter.

[anonymous-user]

It's not unlawful for an employer to act according to its own best interests, to take advice, or to have a strategy. If you have distinct grounds for alleging a breach of any professional code, you can do so, but a vague feeling that it's all a bit unfair won't get you far. It is not the job of your employer's lawyers to smooth your path.

[IanA2]

Breadvan72 said:

It's not unlawful for an employer to act according to its own best interests, to take advice, or to have a strategy. If you have distinct grounds for alleging a breach of any professional code, you can do so, but a vague feeling that it's all a bit unfair won't get you far. It is not the job of your employer's lawyers to smooth your path.

Thanks.

Unfortunately at this point I cannot give examples or indeed point to the specific Acts peculiar to this situation. Perhaps it wold be easier to understand if I could.

If I understand what you are saying above, then you say that it is quite proper for a solicitor to omit to inform the barrister that they were complicit, or indeed wholly responsible, in orchestrating/implementing, for example, a smear campaign, and/or other equally damaging actions, as part of the removal campaign that they ran against the employee on behalf of the employer.

If indeed that is what you are saying, that under the banner of, "It's not unlawful for an employer to act according to its own best interests, to take advice, or to have a strategy", this sort of behaviour is considered to be normal and acceptable practice, then I am clearly more naive than I had thought I was.

It is specifically the solicitor's ethical duty towards the barrister that interests me.

Again, apologies in advance here, as I cannot go into precise details at this point. But this is not a trivial matter. It has ruined the live of the individual concerned. Who studied and trained for many years to achieve the position, and who has now been made both unemployed and unemployable by the actions of a few mediocre individuals threatened by the consequences of their lax ethical positions and their willingness to allow others to suffer to prop up their comfortable public sector positions. I suppose in part that this is what has attuned my interest in the ethical standards of the legal profession.

Edited by IanA2 on Sunday 23 November 07:21

Edited by IanA2 on Sunday 23 November 07:22

Edited by IanA2 on Sunday 23 November 07:23

[anonymous-user]

Why won't you spell out what your concerns are? It is impossible to advise on vague generalities. A solicitor should not place a barrister in a position in which the barrister inadvertently misleads a court or tribunal, but that's not a matter which anyone other than the barrister or the lay client can complain about. Lawyers should act ethically. It is impossible to say whether they are doing so in your case because you won't supply any details.

[anonymous-user]

IanA2 said:

...

If I understand what you are saying above, then you say that it is quite proper for a solicitor to omit to inform the barrister that they were complicit, or indeed wholly responsible, in orchestrating/implementing, for example, a smear campaign, and/or other equally damaging actions, as part of the removal campaign that they ran against the employee on behalf of the employer.

...

I have said nothing of the sort. Kindly do not twist my words.

[IanA2]

Breadvan72 said:

Why won't you spell out what your concerns are? It is impossible to advise on vague generalities. A solicitor should not place a barrister in a position in which the barrister inadvertently misleads a court or tribunal, but that's not a matter which anyone other than the barrister or the lay client can complain about. Lawyers should act ethically. It is impossible to say whether they are doing so in your case because you won't supply any details.

Thanks.

Yes, that has been my feeling from the start.

The case is in process, settlement discussions are live, accordingly, it is difficult to give details.

[IanA2]

Breadvan72 said:

I have said nothing of the sort. Kindly do not twist my words.

Apologies, I did think that was what you said.

[anonymous-user]

There is no legal constraint on discussing the case. You need not name names but there is nothing to preclude you giving details. What is the point of this thread? You presumably have professional advice. You won't improve on that here without providing some facts. If you are looking for validation of your views, that's worthless unless based on the facts.

[IanA2]

Breadvan72 said:

There is no legal constraint on discussing the case. You need not name names but there is nothing to preclude you giving details. What is the point of this thread? You presumably have professional advice. You won't improve on that here without providing some facts. If you are looking for validation of your views, that's worthless unless based on the facts.

There is currently no professional input.

I am not looking for validation of my views which you as you correctly point out would be worthless unless based on facts. That said, some of your observations, based on the facts I have, have been useful, and I feel more able to discuss the matter with the SRA; for that my thanks.

I did in fact pm you, I think about a year ago, giving you detailed information as I was seeking help with recommendations regarding the Bar Pro Bono Unit.

The whole story, if/when it surfaces is a curly story of abuse with multiple story lines and pantomimic characters. If/when I can, I will reveal all.