If the Ukraine invasion and its ensuing debates around right to representation inflicted a bruise on the legal profession’s reputation, recent professional misconduct episodes have surely left a greater wound.
In early May, a Twitter post authored by a Cardiff restaurant owner went viral, containing claims that a group of Ince lawyers had behaved inappropriately towards a waitress.
In the post, which has been ‘liked’ over 134,000 times since it was uploaded on 4 May, Cora owner Lee Skeet alleged in an email that the group had ‘talked down to, disrespected, and touched unwantedly’ a 22-year-old waitress named Lily.
Skeet went on to offer the party a refund, writing: ‘I would thank you to never come back to my restaurant. Lily means a lot more to me than money. I also think you should assess the people you surround yourself with.’
The email (sent on 4 May) was addressed to Ince’s head of finance, John Biles. However it was understood that it was the behaviour of Biles’ guests at the table, rather than his own, that was being questioned.
The next day, Ince sent an internal memo announcing the retirement of Biles, although the firm claims this was pre-planned and not related to the incident. The news would have ignited interest at the Solicitors Regulatory Authority (SRA), who surely would have eagerly anticipated the conclusion of an internal Ince probe into the matter.
The internal investigation, run by CM Murray, finished in mid-June. Ince confirmed that action had been taken against the relevant staff, but would not disclose the nature of any punishments. While the findings remain confidential, the firm has vowed to improve its culture by appointing former DLA Piper HR director Carol Ashton to review its training and policies.
ʻWhere does professional life stop and private life start? I don’t think that being rude to someone in a social context is a breach. There has to be some sort of continuity between the action and how you behave in a professional environment.ʼ
Iain Miller, Kingsley Napley
If any Ince solicitors are found to have been in breach of the SRA’s Principles, the firm would be expected to self-report any wrongdoing.
Potentially most relevant would be principal 2, to act: ‘…in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons’.
Rule 3.9 of the SRA’s Code of Conduct for firms states: ‘You report promptly to the SRA, or another approved regulator, as appropriate, any facts or matters that you reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware. If requested to do so by the SRA, you investigate whether there have been any serious breaches that should be reported to the SRA.’
However Iain Miller, legal ethics expert and partner at Kingsley Napley, questions the jurisdiction of the SRA in reference to the Ince matter: ‘Where does professional life stop and private life start? I don’t think that being rude to someone in a social context is a breach. There has to be some sort of continuity between the action and how you behave in a professional environment – for example, if you were lacking integrity when it came to personal decisions, it might impact your ability as a lawyer.’
Miller pointed out though that the SRA has recently concluded a consultation on implementing a rule concerning ‘treating colleagues with fairness and respect’. If this guidance is adopted, it would include an obligation for lawyers to challenge such behaviour upon witnessing it, although it is understood this would only apply to workplace conduct. Miller muses: ‘It’s quite strong wording. Does that mean that if you’re at the Christmas party and you spot a partner and a junior associate being overly friendly, you’re expected to stand up and shout: “I challenge you on this!” Lawyers hate being given positive responsibilities.’
Worse was to come later in May, when Dechert condemned its former partner Neil Gerrard after the High Court ruled both he and the firm breached their duty of care to mining giant and client ENRC.
The £70m claim brought in 2019 was heard by the High Court in an 11-week trial between May and September 2021. It centred around allegations that Dechert – which represented ENRC between 2011 and 2013 – colluded with the Serious Fraud Office (SFO) during an investigation into the company. Gerrard led on the matter for Dechert, with ENRC specifically alleging he passed on confidential information to the fraud watchdog and the press.
Justice Waksman’s 386-page judgment made for extraordinary – and scathing – reading. Describing his actions as ‘unimaginable’, the judgment detailed how Gerrard had told individuals associated with ENRC that he had been approached to become director of the SFO, with his Dechert online biography claiming as much until February 2016. However, no evidence supported this claim, and Justice Waksman concluded: ‘At best, this was a considerable exaggeration of the reputation which he claimed he had at the SFO; at worst it is simply untrue. Either way, it was a misleading statement by a professional to potential clients.’
Justice Waksman additionally determined that Gerrard was ‘the instigator’ of three leaks of confidential ENRC information to the press and found that in doing so he had contrived to expand the scope of the SFO’s probe. The ENRC alleged that this was to increase his own fees – according to the judgment, Dechert billed ENRC £13m for the 2011 to 2013 period, an amount ENRC deemed to be inflated by ‘unnecessary fees’ of £11m.
It gets worse – a security consultant employed by ENRC to conduct internal investigations, named in the judgment as Cameron Findlay, alleged a variety of alarming behaviour on behalf of Gerrard. One anecdote alleged by Findlay was summarised in the judgment: ‘As he approached the table Mr Findlay recalled Mr Gerrard rubbing his hands and saying: “right boys, I’m in rape mode”. He said that the SFO had now written to ENRC because of the August article printed the day before, that the key people from his team at DLA were now at Dechert and he was going to “screw these fuckers for 25 million”’.
Justice Waksman concluded: ‘As for the shocking expression “I’m in rape mode”, it is so obviously appalling that one has to question whether it is really likely that a solicitor would use it, especially in a restaurant where others might overhear. For his part, in cross-examination Mr Gerrard indignantly denied it. However, I regret to say that Mr Gerrard, being the volatile character that he is, was in my view capable of saying it.’
As well as tarnishing Gerrard and Dechert’s reputations, the case marked another high-profile setback for the SFO, with Justice Waksman ruling the agency had acted with ‘bad faith opportunism’ in following up on the relevant pieces of information wrongfully communicated to it by Gerrard.
It is such a fundamental breach of trust to have your appointed adviser leak damaging information, that it will no doubt cause clients to scrutinise their external counsel more closely than ever. But is there a wider ethical point lost among the outrage?
With the SFO continuing to pursue lines of enquiry as a result of the information leaked by Gerrard, one is reminded of the case of Stephen Chittenden. In 2017, it was reported that Chittenden, a veteran criminal lawyer, admitted to sharing confidential client information to assist with a murder investigation.
In 1978, Chittenden successfully defended his client on a murder charge in Derby. A year later, without consent, he provided his former client’s file to solicitors acting for the estate of the murder victim. The solicitors were pursuing a civil action against a man who was eventually convicted of the murder.
As well as tarnishing Gerrard and Dechert’s reputations, the case marked another high-profile setback for the SFO, with Justice Waksman ruling the agency had acted with ‘bad faith opportunism’.
Between 1985 and 1987, Chittenden again provided the file to solicitors representing the victim’s estate and gave them permission to photocopy the file. The file contained proofs of evidence, witness statements and legally privileged and confidential documents relating to other proceedings involving the former client.
The matter only came to the SRA’s attention in 2016, when Chittenden agreed with the regulator to remove himself from the solicitor’s roll. He was quoted in his local Derby newspaper as being ‘torn between professional duty and common senseʼ. The SRA ended up taking a light touch, rebuking Chittenden and ordering him to pay costs of £650.
At the time, Law Society Gazette commentators largely praised Chittenden for subverting the rules in order to serve the greater good, but the ethical considerations did not escape some. One comment read: ‘I have no sympathy for this solicitor. Once solicitors start to become mavericks and betray their oath to keep client confidentiality, no one can have any faith in the legal profession or that justice will be their first priority.’
There are clear parallels between the Chittenden and ENRC cases. The central question is: is justice done if improper conduct is punished thanks to a solicitor breaching client confidentiality?
Miller recalls a time where such trust was taken to extremes: ‘I remember a few years ago, a lawyer I knew personally, went to a client’s house because they had threatened to take their own life – he felt he had to personally intervene in order to protect the client’s confidentiality.’ Rules have since changed, and lawyers are entitled to forego confidentiality if there is a threat to life.
The Bar Standards Board (BSB), for its part, is closely monitoring the zeitgeist. Miller observes an increasing trend among lawyers, particularly barristers, ‘straying over the line’ in terms of confidentiality when taking to Twitter to discuss cases. As such, the BSB recently warned against Tweets being geo-locatable, which may allow readers to find out who is being referred to.
In any case, following such a dramatic and dishonourable episode as Gerrard and ENRC, it is entirely reasonable for clients and commentators to question the usually sacred trust placed in solicitors. As one source close to the ENRC case put it: ‘If you can’t trust the head of white-collar crime you’ve instructed from a major international law firm, who can you trust?’