Claire Wallace on impact of High Court privilege ruling on SRA misconduct investigations

Regulatory Law partner Claire Wallace has been quoted in the media discussing how a recent High Court ruling on privilege is likely to impact the SRA’s ability to conduct misconduct investigations.

Claire spoke to The Times, the Law Society Gazette and Law360 following the High Court’s decision that the law firm Carter-Ruck should not be compelled to hand over files linked to its work for a client without that client’s consent.

Claire told The Times that the judgment “threatens to upend the model by which the SRA currently conducts its regulatory investigations”.

The fact that “many allegations of misconduct relate in some way to client work means a restriction on being able to obtain client case files due to issues of privilege will inevitably make the SRA’s job much harder”, she said.

“This judgment is a wide-ranging constraint on SRA’s power to oversee the sector it regulates”.

To the Law Society Gazette, Claire said the judgment “raises so many questions: where does this leave the SRA in relation to its, presumably numerous, open investigations where it is in receipt of (now confirmed) privileged material? What are they going to do with it all? Hand it back? Seek to continue to rely upon it, possibly claiming waiver?

“The fallout in the next few months is going to be interesting. I suspect that all such cases may now simply be put on ice, pending the outcome of a future appeal.”

Claire told Law 360 how the judgment could also cause “grave difficulties” where a third party raises concerns about the way a solicitor or firm handled a client matter. “It is not clear how [the SRA] would navigate around this issue.”

Claire also suggested the ruling may impact the SRA’s ability to start investigations based on material in the public domain as in these case client complianants may be less willing to waive their own privilege.