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One rule for some? Double standards on lawyer tactics

Author: Richard Moorhead |

06 Sep 2012 | 14:25

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There’s an interesting side-swipe at media lawyers from Lord Walker quoted on the UKSC blog in discussing privacy injunctions.

“The development of this branch of the law in England has undoubtedly been accelerated by the egregious conduct of the British press, and the readiness of the legal profession to encourage highly-paid footballers, TV personalities and other celebrities to seek prior restraint in the form of an ex-parte injunction... These so-called super injunctions – secret justice, you might say, available only to the super rich – have raised serious issues.”

I have no argument with concerns about super-injunctions, but I have more doubts about blaming the lawyers here.  I can’t help wondering if the same comment would have been made had it been made in the context of different clients or firms not funded on 'no win, no fee'. Would lawyers be deprecated for seeking injunctions for large corporates where the law indicated they had a decent chance of success and a significant commercial interest in so doing? It’s an interesting question. I suspect a common view would be it’s a commercially justified decision which protects the corporations rights.

Lord Walker’s comments follow in short-order from Mrs Justice Gloster’s comments on Boris Berezovky’s lawyers, as reported by The Law Society Gazette:

Mrs Justice Gloster... said the [case]... ad gone through such scrutiny from both legal teams that it was difficult to establish the truth... ‘no evidential stone was left unturned, unaddressed or unpolished'... [and]

...Those features, not surprisingly, resulted in shifts or changes in the parties’ evidence or cases, as the lawyers microscopically examined each aspect of the evidence and acquired a greater in-depth understanding of the facts.

‘It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.’

While Gloster J is also reported as praising the ‘highly professional and efficient’ way in which the case was conducted, it is in fact a pretty damning set of comments. 

Again, I do not doubt their accuracy (indeed, my instinct is to commend the judge for raising the issue in the way that she did – if overlawyering defeats the overriding principle of the CJR then not only should words be spoken, action should be taken).  For the lawyers involved, I would however, forgive them thinking: I am being subject to greater scrutiny because of who my client is. Indeed, one reason the lawyers in the hacking scandal have been subject to more scrutiny is that they have worked for, albeit it at one remove, our great folk devil Rupert Murdoch.

Again, I emphasise for those that do not know my views on this, that the scrutiny is justified.  I have also seen in the past questionable tactics accepted as simply commercially sophisticated advice.  I do not think that the same leeway would be afforded to a claimant PI lawyer or Mr Loophole arguing a ‘technical’ defence in the Court of Appeal. Might our views of lawyer tactics be shaped by perceptions about those lawyer’s client (and indeed, I suspect, by their business models)?

Heinz and Laumann, in their famous Chicago Lawyer’s study, suggested intra-professional status is associated with client status: lawyers with pukka clients are regarded as more ethical by their colleagues. On one level that raises an interesting doubt about the profession’s own belief in its independence. On another it is simply an indication of a social bias. We should resist the urge to typecast in this way and look as neutrally as possible at lawyer tactics.

Richard Moorhead is director of the Centre for Ethics and Law at the Faculty of Laws, University College London. Click here to visit his blog, Lawyer Watch, and click here to follow Richard on Twitter.

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