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One major issue of the Post Office Scandal case was the management of the evidence for the trial. Here, many SPMs were instructed to destroy all paperwork relating to their appointments; perhaps to appear less guilty. Additionally, it was suggested that evidence may not have been drafted by some witnesses at all and, instead, written by litigant solicitors. This raises huge professional misconduct concerns as the mismanagement of evidence certainly breaches several SRA principles and rules. For example, SRA principle 4 (acting honestly) and Rule 1.4 ('you do not mislead...the court'). By destroying evidence before litigation proceedings even began, the Post Office failed to provide the court with the best chance of determining the facts of a case and consequently achieving justice. This is supported when the the judge stated there was 'no justifiable reason to destroy such documents'.

Such professional misconduct could be explained by numerous approaches to ethics. It appears one of the most prominent approaches that could have been taken by the lawyers in this case is zeal. Dare proposes the concept of 'hyper-zeal'; pursuing every advantage available to clients through law, as opposed to being solely concerned with the legal interests of the clients. The concept of hyper-zeal is synonymous with the professional misconduct that occurred in Bates. By allowing the destruction of evidence and producing evidence on behalf of clients, the lawyers involved could have been more fixated on bending and finding loopholes in the law to get the best possible outcome for their clients. Although evidence tampering could be considered a crime in itself, if the lawyers were operating under the approach of 'mere zeal', it is questionable whether they would have made the same decisions.

One explanation for why the lawyers may have adopted a hyper-zealous approach to advising their clients in Bates is due to the commercial environment that they operate in. Large law firms, such as Womble Bond & Dickinson in Bates, face steep economic and financial pressures that may influence the way they approach ethics. Kirkland explains that those working in high pressure commercial firms are more likely to make decisions according to the logics of their firms. When this is paired with the well-known pressures that commercial lawyers face, such as chances for promotion, senior scrutiny and high billable targets, it is unsurprising that lawyers may want to operate through hyper-zeal to get the best outcome for their clients. This is because more client wins could ultimately lead to more recognition within the firm, and the added rewards that come with this.

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The decision to submit a recusal application is one which raises several questions as to the professional conduct of those involved. These include whether the application was a waste of the courts time, whether this act was arguably justifiable, or whether the lawyers ‘involved’ in this decision acted with independence. All of these questions could indicate a breach of SRA principles and rules. Firstly, the way in which the decision to submit this application came about causes concern as not only was this decision subject to a board vote, but it is evident that Counsel submitting the application discovered the decision in it’s latest stages (although this is somewhat unclear). The significance of a board vote is that it suggests some degree of disagreement between decision makers, and a lack of unity results in individuals acting without independence. Moreover, if the Counsel did discover this at this late stage, they absolutely can be seen to have been acting without independence as they had no say in this strategy. This would be a clear breach of SRA principle 3. Furthermore, the Court of Appeal viewed this application as one “without substance” and later described it as “wholly unjustified.” The significance of a baseless application is that it would be contrary to SRA rule 2.4, and subsequently would waste the courts time which would lead to a breach of SRA rule 2.6.

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The SRA code of conduct requires solicitors to act fairly and “not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).” The management of evidence for the trial in this case suggests that the counsel involved have breached this SRA principle, for instance by failure to disclose all relevant material to the case. Under the disclosure model adopted for the case, the parties were obliged to “disclose, regardless of any order for disclosure made, known adverse documents, unless they are privileged.” However, in some instance only partial disclosure was seen. By not fully disclosing all relevant evidence counsel have mislead the court as they have not presented the full facts of the case.

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The lawyers acting in the Bates litigation should have used less of an aggressively zealous approach, and more of an approach recommended in line with Tim Dare of ‘mere zeal’. The issues raised by the conduct of the Bates group litigation resultant from the Post Office scandal are made evident from Moorhead, Nokes, and Helm. This case holds significance in the sphere of professional misconduct because of the huge number of lives turned upside down by both POL and lawyers involved as a result of (eventually proven) false claims that SMP’s had stolen money, which had been a result of the faulty online system- Horizon. Whilst POL was greatly at fault for many of the flaws in the litigation, this piece of writing shall focus on the fault of the lawyers. To name a few, some issues highlighted regarding the conduct at the Bates litigation included: the excessive cost created for the litigation by the ‘arguable arguments’ or weak points used, witness statements potentially having been written by the lawyers themselves (in breach of SRA principle 4, honesty), and asserting facts ‘on instructions’ after evidence was repeatedly exposed as problematic which could have misled the court (which could have breached principles 1, 2 and certainly 3). This problematic conduct seems to lie at the fault of the lawyers. There seemed to be a lack of regard for the law itself and administration of justice, and too much emphasis placed on protecting the client, POL which created a conflict of these interests. Whist acting in the best interest of the client is contained within the SRA principles (Principle 7), the SRA mentions that the principles which safeguard the wider public interest take precedence over client interests. The lawyers involved clearly took zealous advocacy and the standard conception model in general too far, Dare has presented this concept in a manner in line with ‘mere zeal’. This involves the lawyer solely being concerned with the client’s legal interests rather than using sneaky ‘tactics’ to ‘win’ the litigation. The lawyer should not go further than legal rights, because it promotes the neutrality of the legal process available to all citizens. Arguably, an approach which focusses on strictly the legal interest of the client is one which can best balance a lawyers obligations to the law, administration of justice, and the client themselves. It is important to honour principle 7 of the SRA principles because everyone has a right to legal representation.

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A - In relation to the conduct of the Bates litigation at trial

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A - In relation to the conduct of the Bates litigation at trial

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One of the issues that has occured in the Post Office Scandal related to the conduct of the Bates litigation trial. The lawyers in this case even after presenting all the witness statements which were not strong enough they also had a witness that had given misleading and incomplete evidence. As mentioned earlier Fujitsu had witnesses that have given false evidence. This shows that they were misleading the court, and how the lawyers have instructed them. By doing so are the lawyers trying to look for their clients best interest even if it means not telling the truth, or have they simply made an unprofessional mistake. By doing so the lawyers are going against their obligations and the SRA. Therefore the lawyers have violated the code of conduct principles. They have broken the SRA principle 4 by misleading the court and not being honest. Therefore this is focussed on the lawyers thinking of the best interest of the client, but they have not followed their obligations to the law itself.

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There are many different approaches when it comes to conducting professional ethics. One such approach is practicality. Lawyers tend to prioritize their zealous advocacy over practicality which causes them to not compliant with the rules and principles lawyers must follow to act ethically within their profession. It will be argued that practicality is the best approach for lawyers to adhere to when considering their obligations to law, the administration of justice, and the client. The recusal application of the Bates Litigation case may be used to argue this. In the Bates Litigation case, the lawyers decided to take a recusal application far into the proceedings. Although it may be argued that the lawyers on this case may have been trying to keep their client best interests in mind by taking the recusal application. However, it may also be argued that the lawyers may have been hyper-zealous rather than practical. It goes to say that the recusal application was arguable. However, it was simply a very poor one on behalf of the lawyers on the case.  Lawyers bringing such applications are responsible for strategy and must be mindful of both the client’s interests but also the administration of justice. In this case, the recusal application was shown to be both a waste of money for litigation and a waste of the court’s time thus questioning the client’s best interest and ensuring proper administration of justice going against SRA Principles 1 and 7.