I have on a few occasions blogged on the High Court’s (and indeed the now Lord Chief Justice’s) exasperation, justified or not, with the conduct of some immigration solicitors.
The facts that are set out below reflect what has become an all too familiar and depressing pattern in which legal representatives demonstrate a lack of care and concern for the substantive and procedural rules governing claims for judicial review. They suggest, in our view, a deliberate disregard for the professional duties that all legal representatives owe to the court, and in the present case to the tribunal.
The firm are reported as saying to Legal Futures:
We are aware of the referral by Green J of a small number of immigration matters in which we were referred to the Solicitors Regulation Authority (SRA) for review.
Whilst it would be inappropriate for us to comment in detail at this stage whilst the SRA review is ongoing, we are confident that, in due course, once the same has been completed, we will be found to have acted appropriately and in accordance with our professional obligations at all times.
I want to move beyond this particular firm. When I last wrote on this matter, I got quite a lot of comment from immigration lawyers suggesting the problems Green J is now referring to were a problem within the immigration sphere and needed stamping on and those who, with varying degrees of clarity, regarded these kinds of tactics as justified given what they saw as a) the extreme peril their clients faced and b) the varied failings of government agents and organisations involved in such cases which similarly disregarded rule of law obligations. In the words of a Baltimore street gang,* It’s all in the game, you feel me?
The issue Colin seems to be raising, aside from whether such tactics, were they to be proven, are unprofessional or not, is whether judges should report the matter publicly. The professional regulators almost always maintain a practice of not naming those they are investigating. Judges calling out solicitors this way circumvents the usual protections.
Equally, it is not uncommon for complainants to reveal that they have lodged complaints and that the SRA have indicated to them that they are investigating, making the privilege afforded to lawyers when investigated somewhat contingent.
But Colin’s point remains a decent one, should judges use their courtrooms as – he seems to be suggesting – a kind of bully pulpit? Or is judgment (as I imagine they would say) a key opportunity to remind the profession of their obligations? Certainly Green J will have got the attention of many immigration practitioners. One might argue that it would be more appropriate for the judge to write to the SRA, outline the concerns and make available the relevant information to allow the SRA to investigate and leave it to the SRA to decide whether and how to issue more profession wide warnings. That would be a lot slower and much less likely, with the greatest respect to the SRA, to garner the profession’s attention; but it might be argued to be more proportionate.
Conversely, with justice meant to be transparent and this behaviour being dealt with in a courtroom, why not have the judges thoughts made public, with the usual avenues of accountability in place (appeal, complaints, etc.)?They are clear matters of great importance to the health of the justice system and matters of public interest.
It is to be hoped that the SRA investigation is well resourced and swift so that if the firm of solicitors has been poorly treated by the judge further information can become available quickly. It’s a fairly folorn hope though. There is also the intriguing point raised by the suggestion that government lawyers and immigration staff are just as bad or worse in their disregard of the key professional obligation to protect the rule of law and the administration of justice. If it is a well-founded allegation, do judges call these breaches out? If not, why not? Are they the kind of administrative breaches which judges see as lying beyond their concern?
Whatever the merits of judges calling one set of problems out, the continuing issues in the sphere suggest broader concern’s that may need a wider approach than simply criticising firms that get reprimanded by the High Court, or the judges that do the reprimanding.
*Okay, apologies, I’ve just finished the Wire boxset
Richard Moorhead is Professor of Law and Professional Ethics at UCL, you can read his blog here.