In the Media

Analysis: Private Eye victory benefits lawyers and their clients

PUBLISHED May 22, 2009

The magazine Private Eye has won a significant victory with yesterday's Court of Appeal ruling against leading solicitor Michael Napier and his law firm, Irwin Mitchell, making public the disciplinary findings against lawyers in thousands of cases.

The law is a grey area as to what rights complainants had to talk about the results of their complaints. But had the ruling gone the other way, the Law Society disciplinary scheme - and perhaps those of other professions - would be even more shrouded in secrecy than now.

The appeal judges, Lords Justice Hughes, Toulson and Sullivan, were scathing of the arguments put forward by lawyers for Mr Napier and Irwin Mitchell. They were also robust in affirming the rights of both complainant clients, and solicitors themselves, to speak about such proceedings - subject to the existing laws of libel or the duty not to disclose confidential material relating to third parties.

In this case, however, the judges noted, the subject matter of the adjudication was "nothing private to the solicitor" but was the "conduct of the solicitor in relation to the complainant".

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Why, the judges had to examine, should that be regarded as confidential? Irwin Mitchell?s claim to confidentiality was based on an assertion about the "intrinsically confidential nature of the Law Society scheme".

But, Lord Justice Hughes noted, in 2007, the Solicitors Regulation Authority issued a news release, saying it proposed to publish findings of misconduct that resulted in a reprimand. That move, it had said, would increase public confidence in the solicitors' profession.

That view did not accord with the argument that the scheme was selected by interested parties to "assure confidentiality", he said.

He added: "More fundamentally, I do not believe that it can be said that the complainant subscribed to a duty to treat the panel adjudication as confidential by his conduct in invoking the Law Society's extra-statutory scheme for investigating complaints against solicitors.

?And I cannot see any other basis on which any reasonable person in his position would have regarded himself as being under such a duty."

Nor, he added, did he accept the argument that the scheme would be unworkable unless the parties had to treat the panel findings as confidential, nor that it would impair its integrity.

The SRA did not see any impairment to the integrity of the scheme when it proposed publishing reprimands, he added. On the contrary, it thought public confidence would be increased.

And as well as complainants, solicitors themselves might want to publicise the fact that they had been cleared of allegations of misconduct and clear their name.

"I do not see why any reasonable person would consider himself to be precluded from doing so by a duty of confidentiality owed to the former client, who had made public allegations which had been rejected by an independent body after investigation."

Finally, the judge was highly critical of the argument that confidentiality was necessary to protect solicitors under investigation.

"It would only servie to assist the solicitor if the complaint is found to be justified," he said.

"It is singularly unattractive to argue that confidentiality should be recognised by the law, in order to protect the interests of a solicitor against whom an adverse finding has been made.

?The purpose of the scheme, he concluded, was not to protect the reputations of solicitors against who adverse findings are made, but to "provide a proper means of reuglating the profession and maintaining public confidence in it."

"I cannot see any basis on which it could have imposed on the complainant, involuntarily, a duty not to disclose the outcome of the investigation, even if it had wished to do so," the judges added.

"Lawyers and other professionals may fear what they call "open season for complainants" and that thousands of previously private findings will be publicised.

But Private Eye have won a notable victory for consumers of legal and other professional services - and for the profession itself, in ensuring its dealings remain as open and transparent they ought to be.

The ruling was heralded as an "important victory for freedom of speech" by lawyers for Private Eye.

Robin Shaw, who led the team from Davenport Lyons, said: ?This result helps to put a brake on the ever-increasing efforts of celebrities and the rich and powerful to gag the media through the use of the law or privacy/confidentiality from publishing things they would like to keep from the public gaze and is an important victory for freedom of speech."