TV Attorney Syndrome
It happened to me rather more when I undertook criminal work, but, on occasion, I still find myself faced with what I call "TV attorney syndrome."
What I mean by that is the belief on the part of some clients that, like on the telly, when he is in a spot of legal bother the client can rely on his lawyer to tell him what to do and what to say, safe in the knowledge that, as with doctors and priests in the confessional, what is said in the interview room is absolutely confidential and can never be used against them. In real life we call this “legal professional privilege”.
Some clients find it difficult to accept that, unlike what they see in the fictionalised LA lock up, my job is to offer advice as to the law. In the criminal context, I might suggest that the best course of action is for the client to say nothing, given that it is for the prosecution to prove its case, but what I cannot do, even though it seems to happen regularly in TV cop shows, is to concoct a scenario which, if true, would save the day for the client, and then invite him to present it as fact.
With some clients, I have to explain that I am governed by the Solicitors Regulation Authority (SRA) Code of Conduct. The first two of its mandatory principles are that a solicitor must 1/ uphold the rule of law and the proper administration of justice and 2/ act with integrity.
What that means is that I must play fair. I cannot tell the court lies nor suggest that the client does so. These principles override the duty to act in the best interests of the client.
At a rather mundane level, I had to explain these principles recently to a client who suggested that it might be strategically useful at a preliminary hearing to suggest that our witnesses would be unavailable for a prolonged period, thus delaying the final hearing, inconveniencing the other side and therefore perhaps encouraging a settlement.
Once again, although not as frequently as was the case earlier in my career, I am asked , if I refuse to play the TV attorney, whose side I am on. I hope that what I have stated above about mandatory principles covers that point.
An associated point recently came before the Employment Appeal Tribunal (EAT) in the catchily named case of X v Y Limited.
In that case, the claimant ("X") was actually an in house lawyer. He was also a disabled person under the Equality Act 2010, suffering from type 2 diabetes and obstructive sleep apnoea.
We can skim over the background facts. Suffice it to say that X raised a grievance claiming that Y Ltd had taken measures which amounted to disability discrimination and/or a failure to make reasonable adjustments to accommodate his disability.
No employer likes to receive allegations of this nature and Y Ltd was apparently no exception. Although the report does not say so, one might infer that X was consequently viewed as something of a nuisance.
It so happens that, shortly after the company held a grievance hearing (but before it announced the outcome) Y Ltd decided that some lawyers' roles were to be deleted and there would have to be redundancies.
X was unsuccessful in applying for the roles that remained. He was therefore "at risk" and eventually made redundant a few months later. He claimed unfair dismissal and disability discrimination. On his claim form he made reference to 2 matters.
Between the grievance and his redundancy, someone (presumably a colleague) had sent X anonymously a copy of an email headed "legally privileged and confidential". The email had been sent by a senior lawyer (it is unclear if he/she was in house or at an outside firm) to a lawyer at Y Ltd. Unhappily, the text of the email has not been disclosed in the judgement. In any event, X maintained that the advice being given in that email was that the redundancy process could be rigged so that the troublesome employee could be quietly disposed of.
Also, of all things, X alleged that, shortly after the redundancy process had been announced and before he received the email, he overheard a conversation in a pub near the office in which one woman told another that a lawyer at Y Ltd had brought a disability discrimination complaint but that there was “a good opportunity to manage him out by severance or redundancy as there was a big reorganisation under way”. The Claimant said that this overheard conversation (whilst inevitably hearsay) offered some corroboration for the interpretation of the email which he wanted to put forward.
Y Ltd had sought to have reference to these matters removed from the claim form (so that, at the eventual hearing, X would be unable to raise them) on the basis that they contained matters of legal professional privilege. An Employment Judge had found for Y Limited but, before the case could be brought to a substantive hearing, X appealed.
The EAT judgement refers to a 1991 Court of Appeal case which said this about legal professional privilege:
"The doctrine … is rooted in the public interest, which requires that hopeless and exaggerated claims and un-sound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege…"
The concept of legal professional privilege is what lawyers call a matter of public policy. It has no basis in legislation, but judges have decided that it is essential for the proper administration of justice.
However, what judges can grant they can also take away and, in 1995, another case established the principle that "advice sought or given for the purpose of effecting iniquity is not privileged."
If X therefore established a “strong prima facie case of iniquity” then he would be able to put the offending email before the Tribunal and thus (if his interpretation of it was accepted) in all probability fatally undermine the company's defence that it had carried out a reasonable and proper redundancy process in which X's disability and his earlier grievance had played no part.
The judge carried out an analysis of the advice given in this particular case as well as a discussion as to what amounted to "iniquity": was fraud necessary or was discriminatory conduct enough?
X won. Advising a client how to defeat the law was iniquitous. The judge said that “if the advice in the email… had gone no further than ‘you may select [X], an employee with a disability, for redundancy but you run the risk of a claim by him’… it would not have reached the high threshold required to disapply legal advice privilege.”
But she went on: “[the email] records advice on how to cloak as a dismissal for redundancy dismissal of [X] for making complaints of disability discrimination and for asking for reasonable adjustments…” There was, she said, a strong prima facie case of “not only an attempted deception of [X] but also, if persisted in, deception of the Employment Tribunal in likely and anticipated legal proceedings.”
It follows that, once the case goes back to the Employment Tribunal for determination, X can refer to the email. I have a hunch that the case might settle before then.
Having practised exclusively in employment law for a number of years, it is fair to say that only rarely has a client asked me to assist with the implementation of a fair and transparent redundancy process. It is much more common for the client simply to tell me that "I need to make so and so redundant” or, when discussing a troublesome employee (perhaps when I have advised that there was no way he could be dismissed fairly for misconduct or a lack of capability) to ask “can we not make him redundant? “as if that makes the problem go away.
It has sometimes been awkward my having to explain that, although I can advise on the steps that should be taken, we cannot rig the outcome. In order for it to be fair, the decision to make someone redundant is something that should take place at the end of a process, rather than before it has begun. If the tribunal finds otherwise then such a dismissal would inevitably be unfair and perhaps, in circumstances similar to those this case, discriminatory as well.
At least I can now quote the case of X v Y Limited to my client and warn against the perils not only of carrying out a spurious process but also seeking to drag me into some sort of conspiracy.
It is not impossible that the author of the email in this case could find him self (or herself) in hot water with the SRA for a breach of the mandatory principles. This is not what we do!