So Julian Pike, Partner at Farrers, is in the news again following a Newsnight scoop which suggests that he has had a role in the surveillance of lawyers opposing him in Hacking related claims. The Lawyer puts it like this:
Farrers contentious media partner Julian Pike, who is no longer instructed by News International on phone-hacking matters, allegedly sanctioned the surveillance citing suspicions that Harris and Lewis were “an item” and that they were sharing confidential information.
As far as I can ascertain at this stage, the significant evidence emerges from an email in which Mr Pike wrote to a private Investigator Mr Webb saying:
“I write to confirm my instruction… If we can show Lewis and Harris living together we think this may assist us bringing professional misconduct proceedings against Lewis and/or Harris.”
Farrer’s appear largely to be keeping quiet on the allegations, pleading client confidentiality and, presumably, that professional privilege applies. Whilst there may be reasonable arguments that privilege has been waived, e.g. by News International’s strenuous criticism of the action Pike and Webb are alleged to taken, a cautious approach to potentially privileged information is understandable. That hasn’t stopped them saying something which helps their case (quoted from the Lawyer again):
“Farrers told Newsnight that it would not be able to comment without the permission of News Group Newspapers, but that there was no concrete evidence that surveillance was commissioned.”
That’d be no concrete evidence except the email Newsnight claim to have seen where Mr. Pike appears to instruct Mr. Webb. Mr Webb says he’s carried out surveillance. And Mr Lewis’ says he has seen video from the investigator of his daughter (perhaps News International thought Mr Lewis was using his daughter to pass secrets to Ms Harris). Perhaps when they mean concrete evidence they mean evidence actually made out of concrete . To be fair some of this evidence may have emerged after Farrers’ issued their statement but, if the email is genuine, their statement is difficult to understand. Or perhaps they mean there is a substantial and truthful alternative explanation for Mr Pike’s actions, but they cannot say that (because of confidentiality).
The revelations have stirred up an interesting debate about whether it is appropriate to use surveillance on one’s opponents. A potential justification is found in the key sentence from the email: “If we can show Lewis and Harris living together we think this may assist us bringing professional misconduct proceedings against Lewis and/or Harris.” A key question, for me, is how genuine and serious were the concerns about professional misconduct? What evidence did Mr Pike have? There are a number of reasons for being sceptical. Mr Lewis and Ms Harris were, after all, working for similar types of client and might have been expected to share information with their clients’ permissions. Perhaps there was a concern the confidentiality agreement between NI and Mr Taylor had been breached (how then could Ms Harris have breached conduct rules though?). It is not impossible, but crucially for me, it is difficult to see how an allegation of an affair would take the professional misconduct allegation much –if any – further. There is as a result an unhealthy impression – we ought to assume unintentionally on current evidence – that an allegation of infidelity might have been used to pressure, even blackmail, Mr. Lewis. It is vital to the profession and to Farrers that as much distance is put between them and this impression as is possible.
Against this background, Farrers’ “no concrete evidence” response appears particularly weak. It will have to be tested.
We wait, of course, to hear from Farrers and Mr Pike, as I suspect we almost certainly will now – either in the context of the Parliamentary investigation or once the SRA investigates (as far as I am aware it has yet to confirm it is but a risk-based, outcome focused regulator has to act swiftly to tackle the perception and any underlying reality to potentially serious breaches of professional ethics here). News International can presumably be prevailed upon to waive privilege. If Farrers and News International cannot demonstrate a level of genuine and reasonable belief at the time in professional misconduct by Mr. Lewis (however subsequently ill-founded) then I can think of no reason which would render advising or assisting the client to take such a course of action appropriate.
Even if there was some suspicion, there remains the question of whether considering and/or facilitating surveillance on opposing solicitors is ever justified. At the time, Farrers were under professional obligations to uphold the law and the proper administration of justice and to act with integrity. There will be inevitable questions as to whether they may have allowed their independence to be compromised by a powerful client. Whilst Farrer’s owed duties to their client these are, situations of conflict, subservient to the public interest and the public interest in the administration of justice. Professional guidance in force at the time speaks of the centrality of their integrity in dealing with clients, the courts and third parties.
It maybe that there are occasions where surveillance might be permissible but it violates their opponent’s privacy and it threatens the confidentiality of their opponent’s relationship with their client. To even begin to contemplate one might start from a presumption that there would need to be a reasonable and objectively strong basis for suspecting that professional misconduct was a) happening b) serious and c) relevant to the case in question.
In a way, it is to be hoped there is such a basis: I do not believe the Queen’s lawyers would be stupid enough to be shelter behind client confidentiality whilst evidence of wrongdoing mounts. I see very little prospect of that confidentiality shield remaining up. They may struggle to take it down themselves but, if they are beyond reproach, I would expect them to refer themselves to the SRA and ask for a full and prompt investigation. An alternative, or additional step, would be to expect the senior partner to have reviewed the files personally and to go on record as saying they have done so and found no evidence of wrongdoing by his partner. There has been time given the extant allegations in the case. There is a need to act swiftly: professional integrity is at stake. The concrete is setting.
Update: Mr Pike’s evidence before the Leveson Inquiry robustly denies instructing Webb himself. He defends the use of surveillance against Mr Lewis and Ms Harris, but not Mr Lewis’ family, as legitimate.