Solicitors Disciplinary Tribunal members have been urged not to be swayed by the successful prosecution of solicitor Phil Shiner in judging the conduct of human rights firm Leigh Day.
Patricia Robertson QC, representing the firm and three of its solicitors, told the tribunal today that the SRA had taken a ‘short cut’ in relying on the Shiner case to prosecute her clients.
The Public Interest Lawyers director was struck off earlier this year. He had worked in conjunction with Leigh Day on Iraqi claims against the British Army: PIL leading the judicial review, Leigh Day running the civil claims.
Shiner did not appear for his tribunal hearing and Robertson said the findings proven against him in his absence were now being used as part of the prosecution in the Leigh Day case. ‘I take issue at the use of the Phil Shiner judgment to say "We’ve got that one in the bag", in circumstances where there was no fight,’ she said.
‘Now [the SRA] is saying the whole issue is done and dusted including issues of conduct.’
She added: ‘The SRA is using [the Shiner] judgment in a way which is fundamentally unprincipled. They are reversing the burden of proof and saying we [Leigh Day] have to show you why [the Shiner tribunal] found the wrong conclusion.’
Robertson said all three solicitors charged had been asked whether they believed the Shiner tribunal had been wrong to come to its conclusions on issues overlapping with allegations brought against them.
But she pointed out Shiner’s was a hearing without any of the substantive evidence or arguments made and could not be compared to the present proceedings.
In addressing issues of trust and honesty, Roberton reeled off a list of distinguished lawyers willing to vouch for her clients’ character and dismissed the idea that the three had acted in breach of SRA rules.
The charges include allegations of unlawful payments, recklessness over the conduct of a press conference, withholding – and subsequent destruction of – a key document, and not acting on suspicions that payments to Iraqis to cover missed work were bribes.
The issue of bribes was dealt with at length by both parties during closing submissions: the SRA’s case is that nothing was done to investigate whether payments were bribes despite both Malik and Crowther using the specific word in separate emails. It also appeared in an email from Shiner to Day.
Robertson said there were no concerns from a former police officer who receiving one of the emails, and she questioned why solicitors of such repute and experience would risk everything for the sake of no more than 10 cases.
‘You are being invited to buy into the notion that people would put a lifetime of ethical behaviour on the line – and their ability to continue to practice their profession – in order to hang onto that handful clients, and record themselves doing so using the word bribe,’ said Robertson. ‘It just doesn’t make sense.’
Robertson rejected an allegation involving accepting £25,000 for referrals from PIL, which Leigh Day knew to be paid from public funds. She said there was no evidence of any referral passed onto PIL and therefore no breach of the rules.
She also denied that Leigh Day had authorised payments for referrals for historic cases, as alleged by the SRA. ‘The SRA case is there is a complex conspiracy of £25,000 with a huge amount of effort and false trails being set,’ she said. ‘There is a question about the probability of that.’
Robertson turned her attention to the clarity of SRA rules and cited the prosecution’s attempt to suggest Leigh Day had fallen into ‘hidden traps’. She dismissed the idea that the firm should have sought regulatory advice at every turn and told the tribunal this suggestion may point to the complexity of the rules rather than any misconduct on her clients’ part.
‘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. [The rules] ought to be comprehensible by someone trained as a lawyer. A code of conduct should not contain hidden traps which are not discernible by the reasonable lawyer.’
The defence’s closing submissions continue tomorrow. All defendants deny wrongdoing.
Leigh Day: SRA can't rely on Shiner to nail us
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