In this series of news alerts, our regulatory and professional discipline partner, Andrew Pavlovic, identifies three key regulatory trends which firms and solicitors need to be aware of in 2022. In this first alert, Andrew considers the extent to which the SRA is continuing to investigate personal misconduct following the High Court Judgment in Beckwith at the end of 2020.
The decision of the High Court in Beckwith was widely seen as a warning to the SRA against encroaching into solicitors’ private lives, and investigating conduct which does not touch on a solicitor’s practice or the standing of the profession.
In that case, the High Court reversed the findings of the Solicitors Disciplinary Tribunal (“the Tribunal”) that Mr Beckwith, a partner, had breached Principle 2 (the requirement to act with integrity) and Principle 6 (the requirement to maintain the trust the public places in solicitors and the provision of legal services) when he had a sexual encounter with an associate in circumstances which the Tribunal found did not amount to an abuse of his position of seniority or authority. The High Court found that it was not sufficient for rule breaches to be established on the basis that the Tribunal considered Mr Beckwith’s conduct to be inappropriate. When considering whether a breach of Principles 2 and 6 had occurred, reference had to be made to the underlying SRA Handbook, with the relevant part of the Handbook, in this case, being the requirement to act in a way that did not take advantage of others. As it was found by the Tribunal that Mr Beckwith had not abused his position, it followed that he had not taken advantage of others and, therefore, the rule breaches could not be established.
The SRA suffered a further defeat in a recent case against a trainee solicitor, Mr Fouracre, who had sent a Christmas card containing suggestive and inappropriate comments to a fellow trainee. An SRA adjudicator found Mr Fouracre’s conduct amounted to a breach of Principle 6 (as set out above), gave him a rebuke, and ordered him to pay the SRA’s costs of £600. In reaching their decision, the adjudicator stated that Mr Fouracre’s conduct had occurred in the office, and it was, therefore, not necessary to consider the Beckwith case, which related to a solicitor acting ’outside of practice’.
Mr Fouracre successfully appealed the adjudicator’s decision to the Tribunal. The Tribunal found that the adjudicator had been wrong to proceed on the basis that Beckwith did not apply based purely on the location in which the events had taken place. The Beckwith case required that the adjudicator consider whether the conduct complained of infringed the relevant principles by reference to the SRA Handbook which, in turn, required consideration as to whether Mr Fouracre’s conduct was relevant to the provision of legal services. The Tribunal, accordingly, found that a breach of Principle 6 had not been established, despite their description of Mr Fouracre’s conduct as ’disgraceful”. The case reaffirms that it is necessary to distinguish between conduct that affects the individual’s reputation, and conduct that affects the reputation and standing of the profession.
Notwithstanding the difficulties caused by Beckwith, the SRA appears to be committed to investigating cases of sexual misconduct and/or misconduct outside the workplace more generally. The Beckwith Judgement expressly leaves open the potential for prosecution where a solicitor has taken advantage of others or abused their position of seniority or authority, which will often be the case where there is a senior-junior dynamic. It is expected, therefore, that further investigations and prosecutions will be forthcoming in 2022. In a recent SRA Consultation, the SRA has also sought the profession’s views as to whether fines are a sufficient sanction for sexual misconduct or whether more stringent sanctions, such as suspension (or potentially even strike off), should apply.
In a further example of what some would see as ’encroachment’ into the personal lives of solicitors, in September 2021, a solicitor accepted a rebuke from the SRA in relation to the content of messages he had sent to a private Whatsapp group of approximately 100 members, which were said to be derogatory about certain groups of individuals.
It is clear from the above that there are no ’safe spaces’ for solicitors and they should keep in mind at all times the potential regulatory consequences of their actions, as well as the potential for reputational damage to their firm, that may arise from the publication of such decisions.
If you have any questions arising from this alert, or for any other regulatory queries, please contact our Partner, Andrew Pavlovic, who specialises in regulatory and professional discipline issues for law firms and partners, high-net-worth individuals, companies, charities and regulators.
Andrew Pavlovic is recognised by Legal 500 UK 2021 & 2022 as a ‘Rising Star’ in the field of professional discipline, and has substantial regulatory experience, having previously acted for the Solicitors Regulation Authority over several years in complex disciplinary proceedings and subsequent appeals.
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