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Alastair Brett v The Solicitors Regulation Authority

6 March 2015

The ILG Committee considers an English case looking at a solicitor's duties as an officer of the court.

This case involves an in-house lawyer, who was found guilty of professional misconduct by the Solicitors Regulation Authority for England and Wales (the SRA) arising from the defence of legal proceeding on behalf of his employer, Times Newspapers Ltd. (TNL). Mr Brett was Legal Manager at TNL and was, in effect, their in-house solicitor.

The background

In 2009, a reporter requested legal advice “off the record” from Mr Brett about the identification of a blogger known as “Nightjack”. Nightjack was the pseudonym for a servicing police officer and the blog had attracted a high profile. The journalist (PF) considered that the officer was disclosing confidential information in his blog, and that there was a public interest in identifying him. PF had identified Nightjack from unauthorised access to the email account attached to the blog and sought advice from Mr Brett on whether the newspaper could publish the story. Mr Brett advised that it could publish provided the police officer could be identified through legitimate means. As PF was able later to identify the officer from information publicly available, the decision was made to publish, and the officer informed. During injunction proceedings raised by the officer, the journalist submitted a statement, which Mr Brett had reviewed, which set out the legitimate means used to identify the officer, but did not cover the initial non-legitimate accessing of his emails. The officer’s solicitor also queried during correspondence with Mr Brett whether there had been unauthorised access to his email account, with Mr Brett referring the solicitors to PF’s statement in response. The counsel appearing for the TNL in the case was also not advised of the initial means of identification. The hearing proceeded on the basis that the identification had been by the legitimate means described in PF’s statement. During the Leveson Inquiry, Mr Brett gave evidence and at that stage disclosed how the officer had initially been identified.

The Disciplinary Case and Appeal

The SRA alleged Mr Brett had breached its Code of Conduct, Rule 1.02 , by failing to act with integrity (Rule 1.02) and by knowingly allowing the Court to be misled (Rule 11.01). It set out the particulars of the allegations in the following terms:

“On or about 2 June 2009, while conducting litigation in the High Court… the respondent caused or allowed a witness statement to be served and relied on in support of TNL's defence, which knowingly, and/or recklessly, created a misleading impression as to the facts and matters deposed to in the statement.” 

“On or about 4 June 2009 during a hearing before Mr Justice Eady the respondent knowingly allowed the Court to proceed on the basis of an incorrect assumption as to the facts and matters set out in the witness statement referred to at 2.1 above”. 

Mr Brett accepted that, in hindsight, and after a detailed scrutiny of the circumstances by the Leveson Inquiry, the statement to the court was potentially misleading and could give the impression that the identification had purely been by the legitimate means. However, his defence was that it was inadvertent and unintentional and he had a genuine misunderstanding of the prioritisation of his competing duties and obligations, as he considered he could not breach a duty of confidentiality and/or privilege owed to his client by disclosing the information given to him by PF.  The Solicitors Disciplinary Tribunal found Mr Brett guilty. In the appeal, the court held that Mr Brett was guilty of acting recklessly (rather than knowingly) in misleading the court. 

The court perceived no conflict between Mr Brett’s competing duties as there were a number of ways he could have handled the case, without having to take a view on balancing his duty to the court and his duty of confidentiality/privilege owed to PF and his employer. These were:

  • Obtain agreement of the client to waive privilege/confidentiality
  • Correct the misleading impression of the witness statement in question
  • Disclose the true position to counsel such that the court would not be inadvertently misled by them
  • Abandon defending the claim on behalf of his client

As a result, the case did not go into a consideration of which duty takes precedence – the duty of confidentiality and legal privilege as against the duties to the court.

Lord Thomas of Cwmgiedd, CJ in obiter, however, did point out that where a solicitor is not absolutely sure of the course of action they should take to avoid a breach of their duties, they would be well-advised to seek advice from independent counsel. 

The Scottish Position

While this case looked at the Code of Conduct in England and Wales, the equivalent rule in Scotland is Rule B1.13.1 of the Practice Rules 2011: “you must never knowingly give false or misleading information to the court”.

However, in Scotland, it is also a well-established principle that in terms of a solicitor’s duty of candour of matters of fact to a court, a solicitor is not obliged to put all relevant evidence before it, and may choose not to disclose a fact adverse to their position.  This can help Scottish solicitors to avoid breaching their duty to a court.

The ILG Committee will be working with the Society’s Professional Practice team to understand the full implications of this judgement for solicitors in Scotland.

If you have a query relating to  your responsibilities as a solicitor, or are looking for guidance,  please see the Society’s Rules and guidance A to Z, use the search facility or contact the Professional Practice  team of solicitors on the professional practice helpline on 0131 226 8896.