Davenport Lyons says SDT action on file-sharing is ‘totally unjustified’ By Margaret Taylor 2 August 2011 16:57 17 December 2015 14:40 Sign in or register to continue reading. It's FREE Sign in Email Password Keep me logged in Forgot your password? Not registered? It's FREE! Register now Register with The Lawyer Outcome Focused !!! 2 August 2011 at 17:31 This opens a can of worms. If one acts on client instructions which are at the same time profitable for the firm, that is business in the real world, but if the SDT do not like it you risk getting struck off. Is that proportionate!! Bearing in mind ABSs are going to be the reality albeit delayed slightly from the 6th October due to the fact ironically interalia, the preferred Law Society option for appeals is the SDT rather than the 1st Tier and outcome focused regulation will come into force on the 6th we certainly will have fun and games. Who is next to face the bench, Manchester based perhaps !! Reply Link Anonymous 2 August 2011 at 18:11 I think it’s fair enough for David Gore and Brian Miller to appeal this finding. A letter accusing someone of wrongdoing on their home computer is not “intimidation” – people need to grow up a bit. Reply Link Anonymous 2 August 2011 at 21:18 Maybe Davenport Lyons should keep quite and save their arguments for the appeal. Is it any wonder that the public have lost respect for solicitors’ self-regulation if the profession feels that it can be disrespectful of actions brought and decided in the proper manner. Do Davenport Lyons make similar comments regarding court decisions they don’t agree with, or do they save their arguments for the appeal and let the appellate body decide? Reply Link Anonymous 2 August 2011 at 21:38 Go for it Davenport Lyons. Everyone is supporting you. However why not make your letters public? Let us all decide. Reply Link Anonymous 3 August 2011 at 10:24 I have refused to act in accordance with client instructions (in a not too dissimilar matter (trade mark infringement claim)) because, I understood that the client’s instructions exposed my firm to liability and myself to risks of professional misconduct. The client wasn’t pleased with my resistance to its instructions, and threatened to use more “effective lawyers” (not Davenport Lyons, but another firm not a million miles away from Davenport Lyons), however, the client was eventually persuaded by me to take a less aggressive approach and not only did they (I, in fact) achieve the desired objective, the client also now has a healthy and profitable relationship with the alleged infringer. As a professional advisor, I recognise the need to undertake an objective assessment and, often, to temper a client’s initial pique: that is the value that I add to a client’s business, even if the client does not appreciate a contrary view to its own. Any angry clients can (and do) send threatening letters and adopt an aggressive approach to enforcement of rights, they don’t need a good lawyer to do that and if a lawyer does do that on behalf of client without considering and advising upon risks and alternative approaches, then the lawyer adds little more than their firm’s headed note paper (and the rapidly eroding (because of firms like Davenport Lyons (and they are not, by any means alone)), impact that a “solicitor’s letter” is perceived to have). Seems simple to me, but perhaps I have a better grasp on the use of the words “professional” and “standards” when used both independently and together? Reply Link Scep Tick 3 August 2011 at 11:13 Maybe they should write a threatening letter to the SDT. I’m sure that’ll sort things out. Reply Link Anonymous 3 August 2011 at 12:20 Just because another lawyer took a softer approach in similar circumstances and got some success with that softer approach is entirely irrelevant to the main point, which is that this is a pretty disgraceful state of affairs for our profession when solicitors acting in their client’s interests get punished like this. The SRA & SDT come out of this smelling a whole lot worse than DL, that’s for sure. Reply Link Anonymous 3 August 2011 at 13:41 Anonymous 12:20: not softer, less aggressive and more effective. Good lawyers do not usually slavishly implement client instructions, good lawyers apply their skills and training to any given situation (try being on the receiving end of an obtusely aggressive letter of claim). Your “main point” (and its relevance) is founded on the consequences of the acts of the Davenport Lyons (at the time) lawyers (not those of its client) and whether or not those acts amount to professional misconduct, you do not appear to appreciate the application of relevancy nor the profession’s reaction to the SRA’s and the SDT’s position: and that seems entirely simple to me. Reply Link Anonymous 3 August 2011 at 13:58 I can see from the comments here so far that no-one appears to have the faintest idea how the technology actually works. Would you like to be accused of something, sent a legal letter claiming as much, and threatened with legal action if money is not paid? By all means pursue those breaking the law – but you had better be damned sure that the grounds on which you are basing the allegations are concrete (because in this case they were not). Reply Link Anonymous 3 August 2011 at 13:59 Ah, I love the line “the partners had simply been following the instructions of clients”. And some of the comments below back it up. It’s amazing how so many people offer the “I was just following orders” line to justify their actions. Are we saying that lawyers must bow down to the client regardless? Nonsense. Reply Link Anonymous 3 August 2011 at 14:03 To this civilian, this case reads like evil practice. Try something shady, get caught, then appeal until you’re let off or the point is moot. Undoubtedly not the intent, but the appearance is all I have. I disagree with the earlier commenter, a letter accusing someone of wrongdoing on their home computer would feel like”intimidation” when it demands money and threatens court action the recipient knows they cannot afford as a *first* communication. Any utility or consumer business using such tactics for debt recovery on their own part would soon feel the wroth of ombudsmen, and that is for proven debts, not speculative losses. This type of approach is not in keeping with the soft escalation of action that organisations like the OFT and trading standards (plus the myriad consumer rights champions) would like us all to have, and I fear that attitude has in part motivated the SDT finding. And no, I’m not one of those downloaders. I’m the person challenged by how many avenues of complaint and appeal are available to fraudulent insurance claimants, who is amazed DL got away with sending those letters in the first place when I’d get a rocket from the FOS for it… Reply Link Anonymous 3 August 2011 at 14:03 “I think it’s fair enough for David Gore and Brian Miller to appeal this finding. A letter accusing someone of wrongdoing on their home computer is not “intimidation” – people need to grow up a bit.” – what? threatening KNOWINGLY INNOCENT people with huge fines isnt intimidating? no wonder the profession are though of as arseholes by the rest of the world. Reply Link Anonymous 3 August 2011 at 14:14 It is intersting to see commenst supporting the actions of said firm when everyone else saw it as almost extortion. The general feeling other than here it seems is that these two should have had their licenses revoked forever as an object lesson to the worst of their profession. Reply Link Anonymous 3 August 2011 at 14:17 Only scummy solicitors would be defending the actions of this company. They knowingly and wilfully sent letters demanding payment or face court action to people who they knew to be innocent. This is on record. Some of these people included the very elderly and mentally disabled who it did indeed cause a lot of distress for, especially when a lot of the letters accused them of downloading porn. The law applies to solicitors as well and when they have been found to be working outside the law then they should be punished. A lot of commentators above state how they shouldn’t be punished for following clients instructions, well it supposed to be your job to instruct your clients about what is and is not allowed in law and as a professional you should refuse to carry out any instruction that threatens professional integrity or in a case like this breaks the law. First and foremost evidence is needed that the person you are sending the letter to is responsible and yet this bunch of cowboys decided that they didn’t need evidence and would just send out as many letters as possible to innocent people in the hopes of scaring enough into paying that it became profitable. Reply Link Anonymous 3 August 2011 at 14:28 And here we have proof of why the public don’t trust lawyers. The SDT punish them and with exception of one comment the rest of you are bleating like sheep. Grow up and look up “professional standards ” in the dictionary. If you have trouble with that perhaps you should start saving money up. £20,000 should do it. Reply Link Anonymous 3 August 2011 at 14:33 These guys have agreed that they actually sent out letters to people who THEY KNEW were innocent. If that’s acceptable to other solicitors, then it isn’t saying too much about your ethics. Reply Link James 3 August 2011 at 14:42 Sending a threatening letter or falsely accusing someone of a crime they didn’t commit is clearly intimidation. Its lack of professionalism to hide behind the line of “client made me do it” ..Question is..where was your intelligence? Reply Link I.T. bloke 3 August 2011 at 14:43 How can it be right that this firm was allowed to send out letters without any proof that an infringement had taken place? I don’t know the law (save for some contract law at University) but I do know I.T. and networks and this whole situation stinks. It’s nothing more than extortion by the fear of future litigation. Joe Public see’s the legal industry these days as opportunist sharks and today’s ruling by the SRA actually goes some distance in altering that perception. Maybe DL should have taken some technical advice before careering into this depressing state of affairs on behalf of its clients. Reply Link Anonymous 3 August 2011 at 14:46 Actually they were not representing client as such. some of the supposed clients have not only received no money from this but they have never even been contacted by the firm about it. on top of that why should a group of lawyers go after ip pirates with evidence which in the end amounted to nothing. as part of their job they should of looked into the evidence of who supposedly infringed copy-write law and done a real job of making sure the evidence would stick, not just say yeah ok and send a very nasty letter out which asked for too much money Reply Link Anonymous 3 August 2011 at 14:48 “Everyone is supporting you” – I think not. The action seems to have resulted from a complaint by Which? magazine. Read the report of DL’s behaviour on their website. If Which? is correct, it appears that DL made incorrect assertions in their letters and adopted bullying tactics to scare people who may well not have been in a position to know better, or to afford proper advice. The SDT upheld complaints that DL took “unfair advantage” of their position as solicitors. There is a world of difference between pursuing a claim aggressively on client’s instructions, and taking unfair advantage of members of the public through the use of bullying tactics based on unwarranted allegations which appear to have been based at least in part on misstatements of the legal position. I, for one, welcome the SDT’s decision. Moreover, I find it inappropriate that DL should be making public statements that the SDT action is “totally unjustified”. Public dissent of this nature can only harm the standing of the body and the profession as a whole. Appeal by all means, but DL (and others) should abide by and accept the decision of the appropriate body with respect, without public shows of dissent outside the appeals process, in relation to which the SDT has no ability to reply. Reply Link Anonymous 3 August 2011 at 14:56 and if a 70 old lady with a home PC and had never even heard of file sharing got one of these letters and asked your advice what would you say? you’d say “I am sure that DL are a professional firm and I am sure they are correct, you should pay up” wouldn’t you? no? in my opinion it is never wrong to stand up to a bully Reply Link Anonymous 3 August 2011 at 15:00 The letters did not simply “accuse someone of wrongdoing”. They demanded cash payment from a large number of individuals (with the threat of expensive court action) when the evidence for wrongdoing (IP addresses, for goodness sake!) was *known* to be weak and flawed. They made no further attempt to establish the veracity of their client’s claims. This is unacceptable behaviour by professional lawyers and the SDT are absolutely right to call David Gore and Brian Miller out on this. Reply Link zapatista. 3 August 2011 at 15:17 what idiots some of these commentards are. of course the letters are ‘intimidation’. if any of those in the legal profession have any faith in the opinion that the public generally like them, then reading the article and commenting in favour of the two scumbags should explain why – they are bloody delusional. not that i am saying all lawyers are ridiculous. just most of the ones i have met. so sue me. Reply Link Anonymous 3 August 2011 at 15:21 I agree with anonymous at 10.24 above. I recall there was an article years ago in the Journal or Gazette, I forget which, with a heading something like a lawyer shouldn’t be a gun for hire. There a solicitor had sent out demands on behalf of landlords of long leaseholds to mortgagees for payment of ground rent due from mortgagors. The letters before action were found to be too aggressive and unnecessarily threatening or something like that. We are not as a profession the hired gun of our client. Perhaps we are no longer a profession and if that’s the case we only have ourselves to blame. I suppose the vast majority of us forget that we are first and foremost officers of the court irrespective of the area of law in which we practise. If we remember that then we shouldn’t go far wrong. Reply Link Anonymous 3 August 2011 at 15:38 Methinks the lawyers doth protest too much. Sending a letter to someone who one can be pretty sure is liable for damages is pretty reasonable. Mass-mailing thousands of people who they know are likely to be not liable constitutes harassment. Since many of you will be unfamiliar with the details of the case, a large number of emails were leaked in which the parties involved knew that they were going on a fishing expedition. Any professional has a duty to refuse to partake in actions that they know to be unethical. Davenport Lyons failed in their duty, and are now being punished for it. Reply Link Neil 3 August 2011 at 16:11 An IP address can not only be used by anyone in a family it can be tapped into by a neighbour or even faked by hackers. These lawyers knew this and therefore knew that some of the people they targeted must be innocent. Regardless of this they went ahead with threatening huge legal fees and embarrassing court battles unless people paid a fee to make it go away. This was done purely for profit with no real intention of any establishing actual culpability in court. Anyone supporting these actions has no ethics and should consider their place in the legal profession. Reply Link Anonymous 3 August 2011 at 17:39 Must seem a long time since these glory days – http://news.bbc.co.uk/1/hi/technology/7568642.stm The interesting this is that no one has ever traced this woman and a lot of people think she never existed in the first place, it was all a publicity stunt. Reply Link bob 3 August 2011 at 21:27 These scumbags should be in jail. If you don’t understand why people are so disgusted by this you shouldn’t be working in law. Reply Link Anonymous 4 August 2011 at 10:03 Disgusted which way? If you cannot express yourself unambiguously in writing then you should not be working in law. Davenport’s are a pretty respectable and reputable firm and I think they are justified in being pretty disgusted by this decision. Reply Link Cousin Vinny 4 August 2011 at 10:32 Anon @ 10:03: “Davenport’s are a pretty respectable and reputable firm”. No they’re not. ” I think they are justified in being pretty disgusted by this decision”. No they aren’t. If you work in law, I hope you are not naive enough to believe this is anything other than posturing for a battle they know they won’t (can’t) win. What’s the alternative? “You’re quite right, we acted quite terribly. Sorry about that old bean”. Reply Link Anonymous 4 August 2011 at 10:34 I don’t work in law, and quite frankly, if lawyers in general believe that this is normal and acceptable behaviour from a “respected and reputable” law firm, it’s not something I feel I should have done with my life. You seriously believe that threatening people who, on their own admission, they KNEW to be innocent of any wrongdoing, and demanding cash payments, is NOT disgusting and not a shame on your “profession”? ******* lawyers, hope that’s unambiguous enough for you. Reply Link Gladiatrix 4 August 2011 at 11:07 Davenport Lyons would be well advised to refrain from further comment on this matter, and to drop the appeal as well. These two lawyers are lucky they are not facing prosecution. The last time I checked sending threatening letters through the Royal Mail was a criminal offence. Reply Link Anonymous 4 August 2011 at 12:46 If they were acting on behalf of owners of intellectual property rights in music, film and games, who’s to say the content of thos letters wasn’t intimidating? “Dear Little Old Lady X, please stop illegally downloading hardcore erotic porn”… Reply Link Anonymous 4 August 2011 at 13:57 Who said they sent letters to people they knew to be innocent? That’s not what the article says. Reply Link Anonymous 4 August 2011 at 15:44 Of course they didn’t send letters to people whom they knew to be innocent. Had that been the case, there would have been an allegation (and finding) of dishonesty and they would have been struck off. I don’t see why there should be any objection to DL putting out a press release disagreeing with the decision of the Tribunal. The SRA put out various press statements before the decision, which is surely something which should be avoided. Reply Link Anonymous 5 August 2011 at 14:47 This was in the news last year, with lots of terrified pensioners on the receiving end of these letters – as I recall there was one old woman whose husband was so incapaciated he couldn’t even open his own letters, who opened it to find that he was supposed to have been downloading gay porn, threatened with court action and fines, which they couldn’t pay. And they hadn’t downloaded anything at all. Action like this is bullying, regardless of the ‘client’s instructions’. So your client is a bully too – no need for the firm to join in. I can’t believe that neither of them thought to ask, when client provided the lists and lists of all these individuals, whether there was any proof that they were guilty? To my mind they have demonstrated they are easily led, unquestioning fools, and that DL can’t see that shows the firm operates at the same foolish level. Reply Link Anonymous 5 August 2011 at 16:39 From some of the comments on here it is clear the legal profession, like MP’s, journalists and others is plagued with parasites and needs to purge itself of those who have forgotten what the word “ethics” means. Perhaps some are not familiar with s.2 of the Fraud Act 2006 – solicitors would be wise to read and understand it before considering misrepresenting their or their clients’ positions. There is no “solicitors making stuff up to extort money”, sorry “negotiate”, exemption in the Act. In the current climate around hacking etc, it would be a very brave or very stupid solicitor who engaged in this given the many pitfalls around data protection and computer misuse. It would be awfully unfortunate to see solicitors imprisoned for misuse of data when issuing this type of letter. I have no doubt questions would be asked as to exactly how alleged file sharers were identified. If it were me, I think I’d take the fine and suspension and keep quiet. Failing that I believe Scotland Yard now has some officers who understand the law in this area quite well. Reply Link Anonymous 6 August 2011 at 02:50 They clearly believed that had sufficient evidence to give rise to an arguable claim: that is why they wrote the letters. Do you seriously think they wrote letters of claim without having any belief in the allegations? Of course they didn’t do that. If they had done that, there would have been an allegation (and finding) of dishonesty. The point of the SDT’s decision is not that there was not enough to merit writing letters, but that the SDT did not like the way the correspondence was written. It’s difficult to see how that justifies a suspension, a fine and a costs order. In fact, the evidence upon which DL relied appears to have been exactly the kind of evidence which is at the heart of the anti-file sharing provisions in the Digital Economy Act 2010. That Act proceeds on the assumption that the person who subscribes to the relevant internet connection is the infringer, which (again) is what DL seem to have done. The SDT cannot sensibly criticise solicitors for adopting an approach which mirrors that adopted by Parliament. Criticising the style of their letters is equally nonsensical, unless those letters were gratuitously offensive. Reply Link Anonymous 8 August 2011 at 03:36 You’re assuming there was no evidence of anything. It is clear from previous news stories that the evidence consisted in monitoring reports, which linked a particular internet connection to a particular alleged infringement. This is exactly the same sort of evidence as that which underlies the Digital Economy Act 2010. Solicitors can hardly be criticised for relying upon evidence of a kind which is regarded as reliable by Parliament. If evidence ultimately proves wrong or unreliable, that is not the solicitor’s fault. Reply Link Anonymous 8 August 2011 at 09:45 Can you send me an email explaining why the 2 comments I posted last week have not been added to the comments page. There is certainly nothing against the T&C’s within the comments and it strikes me of censorship given that neither were in favour of DL Reply Link Anonymous 8 August 2011 at 11:44 Yes, it does all look rather like a Which hunt. Reply Link James O'Shea 8 August 2011 at 13:17 I notice that my previous comment was not posted. I’m sure that I know why, but I’ll try again. As noted previously, the unscrupulous scum at Davenport Lyons attempted to extort money from some friends of mine. They stated that someone using their IP had downloaded music. The problem is that at the time of the alleged download, my friends were in Barbados, and did not have the IP in question. I say again, they were not even in the country and did not have that IP. They only got the IP in question when they returned to the UK and signed up for new Internet service. They could not possibly have been the ones who did the downloading, assuming that there was any downloading, something which I doubt given the behaviour of the unscrupulous scum at DL. When the simple, easily verifiable facts that they were not in the country at the time of the alleged offence, and that they did not at the time of the alleged offence have access to the IP in question, the unscrupulous scum at DL persisted in their extortion attempt until my friends got legal representation, at which point they shut up. They did, indeed, send ‘legal’ notices demanding payment to 100% innocent persons, and they knew, or should have known, that they were doing exactly that. That’s the very definition of demanding money with menaces. In any other situation they would now be serving at HM pleasure in one of her fine custodial establishments. Because they’re lawyers, they merely lose some money… and they have the nerve to whinge about it! If this kind of behaviour is considered to be normal, and defensible by other lawyers, then this says a lot about the lack of ethics in the legal profession. Reply Link Anonymous 8 August 2011 at 17:36 It’s interesting to note how many of those accusing DL of sending intimidating letters etc. use quite fiery language themselves – which would seem to weaken their own arguments. Reply Link Anonymous 9 August 2011 at 17:07 Do remember those accusing DL of sending intimidating letters are not lawyers, and do not have access to a letterhead or the status of a solicitor to emphasise their position. DL did, and used their status as solicitors to forward their clients’ interestes. If they did that in an unprofessional way they deserve the punishment meted out. Reply Link Anonymous 10 August 2011 at 16:25 @Anonymous | 8-Aug-2011 5:36 pm How does it weaken their arguments? The issue is DL’s use of language and their failure to be sure of their facts before they sent out their letters before action. How would you like to have been sent one of those letters if you weren’t guilty. Most people here are understandably angry about DL have done and it follows that “ fiery language” is the appropriate response if they so choose to express themselves in that way. It was DL who found guilty of professional misconduct not the people who have commented on this story! Reply Link Anonymous 10 August 2011 at 17:44 I see, so (if you are a lawyer) you would happily advise your clients to respond to DL’s letters using the sort of language used above? Reply Link Anonymous 10 August 2011 at 19:01 There is a difference between the tone and type of language used in this forum and a lawyers response on behalf of his client. I am sorry you don’t appear to grasp that. Reply Link Jack 10 August 2011 at 20:49 Precisely! “fiery language” does not mean rude and in this space there is greater latitude for expression than in a business letter. This isn’t Ms Reilly’s Etiquette School for lawyers! Reply Link Sam Reichter 3 September 2011 at 09:26 They should have been fined to oblivion. These cowboys give a bad name to our profession. Reply Link Name Email Cancel reply Threaded commenting powered by interconnect/it code.