Solicitors and their staff are rigorously regulated, and with good reason given their responsibilities – safeguarding client money, life changing legal actions and advising clients at their most vulnerable. But where is the line between regulating the professional and intruding into the personal?
To an extent, the regulator has always intruded into the private lives of those they regulate – criminal convictions and bankruptcy have long since been notifiable to the SRA.
The previous Principles (SRA Code of Conduct 2011) expressly applied to “all aspects of practice.” The SRA Principles introduced in 2019, included no such limitation, referring to the “ethical behaviour that we expect all those that we regulate to uphold.”
The SRA Enforcement Strategy includes a section entitled “Private Life” which states:
“We are concerned with the impact of conduct outside of legal practice including in the private lives of those we regulate if this touches on risk to the delivery of safe legal services in future”
The enforcement strategy makes it clear that the closer the behaviour is to the provision of legal services, the more seriously the SRA will view it. The nexus between a solicitor convicted of fraud outside of the office (for example as Treasurer of a local sports team) and the same solicitor having access to client money is easy to follow. However, that link is not always so clear-cut. Complex issues have arisen for the regulator in relation to allegations of sexual misconduct involving those they regulate, highlighted by the Solicitors Disciplinary Tribunal (SDT) case of Ryan Beckwith.
SRA v Beckwith (2020)
Ryan Beckwith (RB) was a Partner at a magic circle firm. A group of employees had a night out to celebrate a colleague (Ms A) leaving the firm. Ms A was an associate at the firm working in the same department as RB.
At the end of the night, RB went home with Ms A where there was a sexual encounter. There was no allegation that the encounter was non-consensual. Ms A complained to the firm as she felt that RB had abused his position of authority over her. RB subsequently left the firm and the matter was reported to the SRA. The regulator commenced an investigation and subsequently concluded that the matter warranted a referral to SDT.
The allegations against RB included that he:
- Failed to act with integrity (Principle 2 of the 2011 Principles) and
- Failed to behave in a way that maintains the trust the public places in you and in the provision of legal services (Principle 6 of the 2011 Principles).
The allegations were largely based on the fact that RB was in a position of superiority over Ms A and that Ms A was heavily intoxicated at the time of the encounter, such that she was vulnerable and/or her judgement and decision-making ability was impaired.
The SDT found the allegations against RB proved. He was fined £35,000 and ordered to pay costs of £200,000 (the SRA claimed £343,957.08). It is important to note that the issues arose when the 2011 Principles/Code of Conduct were in force.
RB appealed the decision to the High Court. He didn’t dispute the findings of fact, but disputed that his conduct amounted to a breach of the Principles.
In upholding RB’s appeal, the High Court determined that the duty of integrity “does not require professional people to be paragons of virtue.” The Court added that such cases are very fact sensitive so that there could not be a hard and fast rule governing the regulator’s reach. Decisions should be made on a case-by-case basis. One of the main considerations will be whether the conduct touches on the individual’s practice in a way that was demonstrably relevant.
It would be wrong to take the decision of the High Court as evidence of the SRA moving away from the regulation of private lives. Not only does the introduction to the 2019 Principles remove the limiting reference to “aspects of practice” but also, the SRA have issued specific guidance in relation to sexual misconduct and acting with integrity. The guidance makes it clear that the regulator will look at issues on a case-by-case basis, and will include issues that arise in the private life of individuals when appropriate.
The SRA have stated that even where there is no connection between the conduct and the individual’s private life, they will take action if the conduct is “sufficiently serious and morally culpable as to call into question whether they meet the high personal standards expected from a member of the solicitors’ profession”.
Firm’s obligations
The SRA has said that it expects firms to foster a zero tolerance culture in relation to sexual misconduct. This ties in with recent guidance relating to wellbeing of staff, creating a culture that allows staff to speak up.
Firms are required to have robust policies and procedures for dealing with allegations of sexual misconduct, including the need to undertake sensitive investigations when allegations are made.
Takeaways following Beckwith and recent guidance
- The SRA can take action for misconduct that occurs in the private lives of individuals
- The decision to take action will be fact sensitive, but the closer the link to the provision of legal services, the higher the likelihood of regulatory action
- Even where there is no such link, action will be taken where the misconduct is so serious that it could damage the confidence the public places in the profession
- Abusing a positon of authority, or taking unfair advantage, will be an aggravating factor that will increase the likelihood of regulatory action
Additionally, it is noteworthy that the SRA recently consulted on proposed changes to the rules – “Rule changes on health and wellbeing at work”. The consultation proposed:
- Specific rules requiring individuals and firms to treat colleagues fairly and with respect; and
- Rules requiring firms and individuals to challenge behaviours that do not meet this standard.
The consultation makes specific reference to conduct which occurs outside of the workplace, particularly in the context of work colleagues. Only time will tell how far the regulator will reach, but its clear that an individual’s regulatory obligations do not end at 5pm on a Friday evening.
If you need advice on any issue relating to SRA compliance, including dealing with an SRA investigation, your reporting requirements or implementing robust internal systems, we are happy to help. Our Head of Compliance, Richard Esney, is a qualified solicitor, who worked for the SRA for 14 years, prior to joining Harding Evans. You can contact Richard here.
