Sian Darlington, business crime and investigations partner at gunnercooke, explores the lessons about professional conduct that lawyers can draw from the recent Inquiry into the Post Office scandal.

Phases 5 and 6 of the Post Office Inquiry concluded at the end of July following four months of live evidence from 66 witnesses. Sixteen of these were lawyers who advised the Post Office and were involved in the conduct of the civil and criminal ligation.

They came from a variety of legal backgrounds including barristers, solicitors, in-house counsel, heads of department, senior partners, junior solicitors and even a retired judge. Many of these lawyers have come in for extensive criticism but it is yet to be seen whether any will face disciplinary action for misconduct.

The media spotlight on the Inquiry has hugely increased public awareness about the conduct of lawyers and their compliance with their professional and ethical obligations, and there are many key lessons for lawyers arising from the Inquiry.

Your duties as a lawyer come first

Susan Crichton, Post Office General Counsel 2010-2013, was criticised by Post Office CEO Paula Vennells for being “more loyal to her professional conduct requirements” and putting “her integrity as a lawyer above the interests of the business”. Far from being a criticism, this is exactly what a lawyer should do, whether in-house or in private practice.

Record key conversations and decisions

“I can’t recall” or “I don’t remember” has been heard all too frequently. The most obvious example is that of Hugh Flemington, Post Office head of legal 2011-2014. Despite the documentation suggesting he played a significant role in some of the key events, Flemington said he could barely remember his involvement in the discussions and decisions made. Reliance on memory alone may store up future problems.

Read email attachments

Hugh Flemington admitted to receiving emails but not opening attachments. Martin Smith, a criminal defence solicitor who took on prosecution work after his firm, Cartwright King, won the Post Office contract, admitted that he did not read highly relevant documents in the case of Khayyam Ishaq, a wrongfully convicted sub-postmaster. The impact of these failures to consider key information cannot be under-estimated.

Do not stray into areas beyond your expertise

Martin Smith played a key role in the prosecutions of the sub postmasters despite not being a trained prosecutor. Hugh Flemington told the Inquiry that he was not sure what the standard of proof was in a criminal trial, instead relying on the Post Office lawyer Jarnail Singh. Singh himself had specialised in conveyancing on qualification. Despite being the Post Office’s head of criminal law, Mr Singh told the Inquiry that his experience in criminal law was very limited.

Do not ignore warning signs

Rodric Williams, Post Office senior lawyer and later head of legal, said that it was “regrettable” that he had not disagreed with an email from external lawyers, Womble Bond Dickinson, advising the Post office to avoid disclosure of certain material in the civil proceedings.

Several of the Post Office’s in-house lawyers apparently knew about the advice prepared by Simon Clarke, a barrister from Cartwright King, which called out the reliability of Gareth Jenkins, yet failed to shout about its significance to those who had already been prosecuted. Many witnesses expressed their regret about not doing more.

Write every email as if it may be read out in Court

Thousands of emails have been scrutinised by the Inquiry. Many witnesses have been embarrassed by their poor choice of words.

Andy Parsons, partner at Womble Bond Dickinson, accepted that his language in an email in which he referred to sub-postmasters as "liars and criminals" was "too strong" and that the email seeking to suppress disclosure was "worded very poorly".

Do not rely on spell checker

In one of very few moments of light relief, the Inquiry looked at an email from Singh to Crichton in which he pointed to a danger of dropping prosecutions while the horizon review was ongoing as it “may send a green light for defendants to get hold of the member of parliament and result in copulation”. Counsel was quick to clarify that Mr Singh meant to refer to capitulation.

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