The Times - UK (2021-11-11)

68 Thursday November 11 2021 | the times

Law

The Solicitors Regulation Authority says confidential details should not be passed on without the client’s consent

Firms share

client secrets

to boost rank

Catherine Baksi on how submitting confidential

details to league tables could breach conduct rules

Chambers and Partners, says the sub-

mission templates make it clear to firms

which of the information they send is

publishable and which is confidential.

The pages on which publishable

information is provided are green,

Marsh says, adding that there is a “dis-

tinct section for confidential work

highlights” that has red pages “to give

that extra visual clue”.

Marsh states that “dealing with sensi-

tive information provided by law firms

is central” to its research. The directory,

he says, processes “tens of thousands of

submissions a year, almost all of which

contain confidential work highlights”.

He emphasises that “storing this

information safely and securely is at the

heart of our business” and says that the

research team “undergoes rigorous

training to ensure that they handle

sensitive matter carefully”.

The online template for submission

to the Legal 500 shows that it uses a

similar system, with green and red

pages, and includes instructions to

“please mark anything confidential

(not for publication) in red”.

The solicitors’ code of conduct obli-

ges firms to “keep the affairs of current

and former clients confidential unless

disclosure is required or permitted by

law or the client consents”.

SRA guidance says that information

“should not be passed to third parties

without the client’s consent”, adding

that it includes “marketing materials”

such as “contributions to law firm

directories or league tables”.

“If we get reports that firms are

sharing information with directories in

a way that fails to uphold this obliga-

tion,” an SRA official warns, “then we

will gather all relevant information and

take any appropriate next steps.”

Richard Moorhead, a professor of

law and professional ethics at the

University of Exeter, says that he is

aware of the practice of providing infor-

mation without permission. “If firms

haven’t obtained consent, it’s a clear

breach of the professional conduct

rules — confidentiality is an absolute

obligation,” he says.

Defending law firms, Melissa Davis,

the founder of MD Communications,

a legal profession public relations con-

sultancy, says: “Firms are generally

very cautious about sharing any infor-

mation about their work for clients so

tend to mark many things as confiden-

tial that aren’t necessarily confidential

in the clients’ minds.

“What firms are signalling to the

directories is that, where they don’t

have express permission, they wouldn’t

want the directories to publish the

names or details of the matters.”

At the opposite end of the spectrum

are firms that are unwilling to disclose

anything, even the name or email

address of the person at the firm for

media contacts.

In compiling our latest league table,

emails to generic “info@” email

addresses without exception went

unanswered. While most in-house

communications staff were polite, a few

were rude, notably the person who

explained that they get “hundreds of

emails” and could not be expected to

reply to them all.

Asked to provide the total number of

lawyers at a practice, one asked, “What

is a lawyer?”, while another responded

with a number that included a decimal

place, later blaming their cat for the

extra digits.

Cautioning firms against sending

“boilerplate” responses, Michael

Evans, a director at Byfield, a law firm

consultancy, notes the “direct correla-

tion between the quality and detail of

information a firm sends to a reporter

and the write-up that firm receives”.

Davis adds that law firms’ communi-

cations staff must be “accessible to the

media” and respond promptly with

information that turns “the complex

into the simple and make it accessible to

the audience”.

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Editor Jonathan Ames

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I

n 1941 Emma Warburton
Hamlyn of Torquay died aged
80 leaving money on trust for
lectures so that “the common
people” of the UK may realise
“the privileges which in law and
custom they enjoy in comparison
with other European peoples” — a
purpose particularly relevant in the
aftermath of Brexit.
One of those privileges is that oral
advocacy has such a central place in
our legal system by comparison with
continental legal systems — as
anyone who has watched the
proceedings of the Court of Justice
of the EU or the European Court of
Human Rights will confirm.

Why we should celebrate our tradition of oral advocacy

There is a danger in lecturing on

advocacy — as I am doing this week

in the 73rd series of Hamlyn

lectures, looking at its essential

qualities, its morality and its future

— that what you say may be wholly

unpersuasive. But the importance of

the subject justifies the risk.

We should celebrate advocacy —

that legal issues in civil and criminal

courts are decided after reasoned

argument in which the participants

refrain (usually) from shouting,

personal insults or threats, and the

points on each side of the debate are

tested for their relevance, their

accuracy and their strength by an

independent adjudicator.

Such a process does not guarantee

that the correct answer will be

achieved. But it does make such a

conclusion more likely, and it also

means the parties whose arguments

do not prevail are more willing to

accept the result.

In the first of my Hamlyn lectures

this week I considered the nature of

advocacy, although inevitably not in

a comprehensive manner —

Quintilian, the Roman rhetorician,

produced 12 volumes on oratory in

the 1st century AD. As others collect

stamps, I collect examples of

unusual advocacy, to some of which

I referred. After a bad day in court,

it is reassuring to be reminded that

your own performance could have

been so much worse.

In my second lecture I addressed

the question: “How can you act for

such terrible people?” And in the

third I look into the future of

advocacy. Oral advocacy will, and

should, survive the demands of

efficiency and technological

developments such as the creation

of online courts. Oral argument

gives life to the written pleadings,

identifying the crucial issues and

highlighting the strengths and

weaknesses of the competing cases.

It gives the judge the chance to

alert the advocates to any difficulties

the court has with the position

adopted by each side, and it gives

the advocates an opportunity to

address judicial concerns or

misunderstandings. An open

hearing with oral advocacy makes

the result more acceptable to the

public, and the losing party.

My aim with this year’s lectures is

to encourage young people from all

backgrounds to think of a career as

an advocate, despite — indeed

because of — its pressures and

challenges. You will need the

support of parents, partners and

colleagues, a strong constitution, an

appetite for hard work, a thick skin

and a large quantity of luck.

But you will have fun. As Lord

Bingham, the former lord chief

justice and law lord, once told a

student: “Go to the Bar — that’s

where the magic is.”

Lord Pannick QC is a tenant at

Blackstone Chambers, a Fellow of All

Souls College, Oxford, and a crossbench

peer. His final Hamlyn Lecture is at

6pm tonight at the law faculty building,

Gulbenkian Lecture Theatre, Oxford,

or online at law.ox.ac.uk/events

David Pannick

Comment

Social media oversharing by those who
post daily pictures of their dinner,
children and themselves is tedious, but
when lawyers provide too much infor-
mation they create risks for their clients
and potentially land themselves in
front of the profession’s regulators.
Most infamously, in 2013 a solicitor
who believed himself to be speaking
“in confidence to someone he trusted
implicitly”, revealed to his wife’s friend
that Robert Galbraith, the hitherto
unknown author of The Cuckoo’s Call-
ing, was a pseudonym for JK Rowling,
the creator of Harry Potter.
The Solicitors Regulation
Authority (SRA) handed
Christopher Gossage of
Russells Solicitors a
written rebuke and a
£1,000 fine for breach
of confidentiality.
And The Times has
learnt that some law
firms routinely share
confidential informa-
tion about clients when
compiling submissions to
be ranked in legal directories.
Now in its fourth year, The Times
Best Law Firms 2022 league table last
week listed 200 firms in England and
Wales, and 40 in Scotland. Researchers
asked 4,500 solicitors and barristers to
recommend the best law firms in 26
categories. Respondents were not
allowed to pick their own firm.
Responding to requests from The
Times for information to be published
in profiles of the firms, several provided
details flagged as “confidential”. One
firm helpfully sent its cases with a line

highlighted in yellow: “See below which

are all confidential cases and must not

be referred to” and provided parties’

names and details of disputes.

When asked why the firms had

sent confidential information, they

responded stating that they routinely

do so when submitting entries for

directories, including the Legal 500 and

Chambers and Partners.

The firms cannot pass the buck on to

their communications teams. In some

cases it was partners who sent confi-

dential information about their clients.

After publication, one law

firm asked for its profile to

be amended because “a

number of partners

here have raised

objections to the

content which was

provided to you by

our senior partner”

and they feared that

it made their clients

identifiable.

In general, law firms

are reluctant to talk to the

press and guard client confi-

dentiality zealously. But when it

comes to puffing themselves up for

directory rankings, caution can be

recklessly discarded.

Insiders told The Times that many

firms feel able to provide confidential

information to the directories without

seeking approval from clients. They

rely on the undertakings given by the

directories to use any information

marked as confidential solely to help

with rankings and not to disclose it.

Alex Marsh, the research director at

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