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Leigh Day takes aim at SRA’s ‘hidden traps’

Code of conduct complexity questioned by defence silk

2 June 2017

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Leigh Day has rebuffed suggestions by the Solicitors Regulation Authority that the firm fell into ‘hidden traps’ in the regulator’s code of conduct, a disciplinary tribunal heard this week.

Patricia Robertson QC, for Leigh Day and three of its solicitors, rejected all allegations of misconduct on behalf of her clients and the SRA’s suggestion that the firm should have sought regulatory advice in relation to payments for referrals for historic cases.

The Fountain Court Chambers silk questioned whether the SRA’s code of conduct was too complex for the ‘reasonable lawyer’ to understand.

‘Is it really being said lawyers can’t understand their own code of conduct without other lawyers to tell them what it means? If that is the SRA position that is a searing indictment of the code of conduct,’ she said. ‘A code of conduct should not contain hidden traps which are not discernible by the reasonable lawyer.’

Giving the defence’s closing submissions at the Solicitors Disciplinary Tribunal yesterday, Robertson sought to dismiss allegations that the firm entered into ‘improper’ fee-sharing arrangements with an individual known only as ‘Z’.

The regulator states senior partner Martyn Day and partner Sapna Malik ‘authorised’ the payment of ‘prohibited’ referral fees of £25,000 and £50,000 in relation to historic cases.

Robertson also rejected the regulator’s allegation that unlawful payments were made to enable witnesses to testify against UK troops. Malik and junior solicitor Anna Crowther had used the word ‘bribe’ in two emails to describe the payments.

In addition, the defence silk also told the SDT that the regulator was attempting to take a ‘short cut’ by relying on the outcome of the Phil Shiner case to prosecute her clients. Robertson said the SRA’s use of the Shiner judgment was ‘fundamentally unprincipled’ and that the regulator was attempting to reverse the burden of proof.

It was argued that consideration of the lawyers’ strong history of ethical behaviour and favourable references from other lawyers should outweigh any question of trust and honesty.

Timothy Dutton QC, also of Fountain Court, used the SRA’s closing submissions to accuse Leigh Day of ‘scaremongering’, following its submission that guilty verdicts against its lawyers would open the floodgates to minor negligence claims.

He also, once again, dismissed the suggestion that the SRA’s prosecution was politically motivated and that the regulator had enjoyed an ‘unhealthily cosy relationship’ with the Ministry of Defence.

Dutton also accused the defendants of an ‘orchestrated’ defence, suggesting that the tribunal had not received the solicitors’ ‘spontaneous recollections’ of events.

In addition, Dutton revisited the press conference in 2008 when Day and Malik are alleged to have personally endorsed ‘sensationalised’ allegations that the British Army had unlawfully killed, tortured, and mistreated Iraqi civilians.

‘If a solicitor is going to state personal opinions in public he had better be right,’ he said.

The defence is due to close its submissions today with a ruling expected next Thursday (8 June). The hearing is now in its sixth week. All the defendants deny wrongdoing.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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