The Solicitors Regulation Authority plans to update its 2022 warning notice on SLAPPs (strategic lawsuits against public participation) to stress that law firms need to be clearer when instructing third parties.
Today the regulator published a thematic review of law firm understanding of best practice. This involved visits and file inspections across a range of regulated firms which did not include those currently subject to an investigation.
Overall, the review found ‘good awareness’ of the issues, with more than half of firms saying they had changed working practices since publication of the warning notice in November 2022. Most firms visited were also found to be delivering a good standard of training to their fee-earners on both SLAPPs and conduct in disputes.
In-house media lawyers, meanwhile, noted that there have been positive changes in law firm behaviour following publication of the notice. No evidence was found in the SRA’s file reviews of the right to reply process being used in bad faith to delay or deter publication.
However, reporting of potential breaches remains a concern. Three firms did not make a report to the SRA about the conduct of other firms when they now think they should have done so.
The regulator also identified concerns over the lack of processes and controls regarding the use of third parties instructed by firms to work on their behalf. ‘When instructing public relations companies or private investigators, firms need to have checks and balances in place to make sure they are acting ethically and within the law,’ it says.
Since Russia’s invasion of Ukraine in February 2022, the SRA has received 60 reports of firms being involved in SLAPPs. The thematic review did uncover indicators of a SLAPP on one of the 40 files reviewed, where the conduct of the firm acting on the other side appeared to include excessive and disproportionate correspondence, and potentially pursuing a meritless claim. The SRA is investigating.
Paul Philip, chief executive of the SRA, said: ‘It is good to see that during our review we found good understanding of SLAPPs and widespread awareness of our guidance. But we also identified several areas where there is room for improvement.’
An anti-SLAPP private members’ bill brought by Labour MP Wayne David is at committee stage in the Commons and has been backed by the government. The bill will expand the crackdown begun by the Economic Crime and Corporate Transparency Act, which only covers economic crime.
An updated SLAPPS warning notice will be issued ‘shortly’, the regulator said.
