Newsletter – June 2024

Spotlight on… professional ethics and the rule of law

Are Costs Lawyers relevant to the Rule of Law?

What is the rule of law and does it have anything to do with the work of Costs Lawyers?

Let us start to answer those questions by taking a step back and thinking more broadly. Why do we have lawyers at all? Well, one answer is that lawyers are the products of societies that are governed by law; where those laws are sometimes complex (and need explanation by experts) and/or where rights granted by law are not respected and/or where people disagree on the meaning of those laws (and so disputes arise). Lawyers act as living agents of the rule of law – using their expertise and professional commitment to stand between their clients and the state.

This professional independence goes in multiple directions: lawyers saying to the state ‘You can only interfere with my client to the extent permitted by law’ while also saying to their clients ‘This is what you need to do to comply with the law’. In this latter way, lawyers make real and help to shore up how members of society (their clients) respect the law and have a habit of attending to it; an important social goal made real by lawyers who are important social actors.

At the same time, lawyers are also servants of their clients, with a mix of professional obligations, contract, tort, and fiduciary duties requiring them to act in the best interests of their clients. On occasion, lawyers’ more public-facing obligations in relation to the rule of law may rub up against and be in tension with their more private-facing duties to their client.

While many thousands of papers and books have been written about what the rule of law might mean or not mean, the debate on what a professional commitment to the rule of law actually looks like (above some general agreement that it’s a good thing and to be valued) has, till now, been pretty limited. In the summer of 2023, we were commissioned by the Legal Services Board to write a report to begin responding to that gap, published in October 2023, on what it means for lawyers to uphold the rule of law.

One of the reasons the LSB commissioned this research is because of the obligations on them, and other legal services regulators (including the Costs Lawyer Standards Board (CLSB)), of ‘supporting the constitutional principle of the rule of law’ (s1(1)(b), Legal Services Act 2007). The LSB and the frontline regulators (including the CLSB) are also required by the LSA to act, ‘so far as is reasonably practicable’, in a way ‘which is compatible with the regulatory objectives’ (s3(2)(a) and s28(2)(a) LSA).

In this way, the rule of law has direct purchase, through statute, on how the legal services regulators regulate and what they expect of their regulated communities. Here, the CLSB publicly recognises its institutional duty to ‘support the constitutional principle of the rule of law.’ While the CLSB 2024 Code of Conduct does not reference the rule of law, the regulator instead applies (as also happens with barristers and conveyancers) rule of law concerns through its professional principles, by means of a duty on Costs Lawyers of honesty, integrity and professionalism in all dealings, a ‘duty to the court in the administration of justice,’ and a duty of openness to regulators.

In our report for the LSB, we suggested there are (at least) seven elements of a legal and professional commitment on and by lawyers to the uphold the rule of law. Four seem especially relevant for the work of Costs Lawyers:

  1. Lawyers are products and agents of the rule of law.
  2. Lawyers help challenge inappropriate exercises of power, and that this is broader than just inappropriate exercises of power by the state.
  3. Lawyers assist clients in knowing the law and enforcing their rights, counselling clients towards legality.
  4. Lawyers are part of a justice system that includes third party access and the proper resolution of disputes.

Costs Lawyers will be well aware that court processes, and so litigation, are run on a particular version of truth-seeking based on an adversarial model. There are, sadly, a number of cases where lawyers have, either in covering up errors or in advancing artificial versions of their clients’ stories, sought to defend or advance legal claims on a false basis. Polishing evidence is a subtler phenomenon also deprecated by courts, along with other concerns such as witness statements being written by lawyers or in lawyers’ words in ways which fit the case but not the underlying evidence, rather than being the lay witness’s evidence; as well as the use of witness statements to make arguments rather than to provide evidence, and misuses of evidence by omission and failures to correct obvious misunderstandings. A closely related phenomenon is evidentiary gamesmanship, when, for tactical advantage, lawyers interpret disclosure orders unduly narrowly or conversely extremely broadly, potentially resulting in what the Court of Appeal described in the context of patent litigation as the ’real vice’ of ‘massive overdisclosure’, bringing the ‘risk that the really important documents will get overlooked.’

The tendency of some lawyers and their clients to present facts as they would like them to be seen, rather than as they are, reached a high point in the Post Office scandal litigation with, as Fraser J’s pithy encapsulation put it, the Post Office’s case being run on the basis that ‘the earth is flat’. This pithy phrase covered a range of problems: pleading a case in a misleading way; relying on evidence as a form of public relations rather than accurately describing what was actually happening in the Post Office; as well as relying on evidence that was wrong, evidence that was inconsistent with the underlying documentation, and evidence that was misleading.

The problem is, of course, not confined to courts. The Hillsborough Inquiry, supposedly run on inquisitorial and therefore non-adversarial lines, saw a lawyer for the South Yorkshire Police’s insurer advising amendments and influencing police witnesses’ statements in ways that ‘minimised the risk that evidence being put in by officers could be used effectively against the force and senior officers in later proceedings’.

All of these tactics increase the risk of cases being wrongly decided or settled, and may also increase the costs, and decrease the accessibility of courts. As such, they harm the rule of law. They are also spaces where, depending on the facts, Costs Lawyers may be part of the narrative and have a role to play.

Beyond tactical manoeuvres of the kind we have just discussed, the abuse of law may also be seen in the making of unfounded claims or defences in courts. Inappropriate claims as to what the law says are sometimes made, and the power and cost of legal processes invoked improperly. Ancillary benefits, other than the resolution of the claim itself, may be sought (such as embarrassing or harming the reputation of opponents or their associates). The courts can of course recognise abuse of process and may strike out or stay proceedings as a result. But they are often reluctant to do so.

SLAPPs are an emerging, if controversial, example of the (alleged) misuse of litigation and litigation threats: this is when a lawyer initiates a proceeding intended ‘to harass or intimidate . . . and thereby discourag[e] scrutiny of matters in the public interest‘. Parliamentarians have complained about SLAPPs but also more generally that some lawyers act as professional enablers of corruption; with a particular focus on an axis with Russian clients with links to the Russian State. Whilst the lawyers involved may emphasise their clients’ rights to bring legal actions for defamation, privacy, data protection, and so on, in some cases it may instead be the fear of the courts (and the fear of the associated time and costs), plus the potential for ‘reputational and financial ruin’ associated with claims, which is being invoked by some lawyers.

Our system of justice means that very rich individuals and corporations are amongst the only parties able to exploit every right the law affords and, because of their wealth, are inoculated from the normal restraints that limit the bringing of claims and excessive tactics (such as a funder’s merits tests and funding constraints, and the potential imposition of costs). It is here too where Costs Lawyers may be implicated and where their professional obligations – including acting with honesty, integrity and independence; promoting the proper administration of justice – will be of relevance.

The challenges for Costs Lawyers are worth some further reflection. Some of these are about the institutions many of them work in (in an SRA regulated firm, for example) where we know well, through insights from behavioural ethics, how institutions (like law firms and other employers) can shape how people see ‘doing the right thing’ and so on. How easy is it to speak up in rigid hierarchies? Other challenges are, of course, about the specialist role of Costs Lawyers – some distance from the ‘actual’ client, with solicitors (and others) acting as professional intermediaries (or intermediary ‘clients’): feeding facts; answering questions; working as gatekeepers. A claim that you were ‘only acting on instructions’ is not going to wash.

Costs, justice, and access to justice go hand in hand. The agency of Costs Lawyers – their ability to have impact through the use of their expertise – came out clearly in research commissioned in 2022 by the CLSB. The question then becomes: what will you do, as a Costs Lawyer, to ensure you are reflecting on your special role as a product of the rule of law and how that special role might be challenged?; and what will you do if you think that special role is being threatened?

Steven Vaughan is Professor of Law and Professional Ethics at University College London

Richard Moorhead is Professor of Law and Professional Ethics at University of Exeter

Kenta Tsuda is an experienced litigator in the US with memberships of the New York and Massachusetts bar, and is currently studying for a PhD at University College London

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