The decision of the Solicitors Disciplinary Tribunal (“SDT”) to strike off Oliver Bretherton from the Roll of Solicitors is undoubtedly significant. It is understood to be the first time a solicitor has been struck off for work related sexual misconduct where there have been no associated criminal proceedings or allegations.
Whilst the SDT has yet to publish its written reasons, the sanction imposed in this case has led to some questioning whether this outcome signals a change in approach by the SDT to sanctions in sexual misconduct cases. In this news alert, our regulatory and professional discipline partner, Andrew Pavlovic, considers whether it can legitimately be inferred from the outcome of this particular case that there will be more strike offs where sexual misconduct is found proved going forwards.
THE FACTS IN BRETHERTON
According to press reports, Mr Bretherton, a director at Gowling WLG at the time, faced 76 allegations regarding his conduct towards three separate complainants over whom he held a position of seniority. 70 of those allegations were found proved by the SDT, including allegations that his conduct had lacked integrity, took unfair advantage of others, amounted to an abuse of his position, and was sexually motivated.
The following findings have been reported:
- Conduct towards Person A (an 18 year old paralegal) which involved inappropriate touching, words and messages, directing her to engage in inappropriate activity, engaging in conduct towards her which was unreasonable and/or controlling, and asking her to conceal his conduct;
- Conduct towards Person B which involved using inappropriate words and sending messages which were inappropriate in both volume and/or content;
- Conduct towards Person C which involved using inappropriate words.
Sexual motivation was alleged but not found proved in respect of the allegations made against Persons B & C.
It is clear that this was an extraordinary and unusual case, involving over 70 proved allegations, 3 separate complainants, and multiple findings of Mr Bretherton having taken unfair advantage and abused his position of seniority. Whilst we are yet to see the Tribunal’s written reasons, after which Mr Bretherton may choose to exercise his automatic right of appeal, we can presume that the volume and the nature of the allegations which were found proved indicated to the Tribunal that Mr Bretherton represented an on-going regulatory risk and/or that it would diminish public trust and confidence in the profession to allow someone who had behaved in such a way to remain on the roll.
In those circumstances, it would be unwise to draw too many conclusions about the implications of this case for other cases going forwards. Nevertheless, the SDT’s written findings will be of considerable interest once they are published, and will hopefully contain some useful guidance or indicators as to when a strike off for sexual misconduct is likely to be appropriate.
It is undoubtedly the case that sanctions are increasing for sexual misconduct. Following a consultation in 2021/2022, the SRA has recently updated its enforcement strategy to make clear that it considers that, in the absence of exceptional circumstances, financial penalties are an unsuitable sanction for sexual misconduct. This position was reinforced at the end of January 2023 when the SRA and the SDT published a joint statement making clear that allegations of sexual misconduct would ordinarily be referred by the SRA to the SDT, rather than being dealt with internally by the SRA using their own fining powers (which have recently been increased to enable them to fine solicitors working in traditional law firms up to £25,000). In that same joint statement, the SRA/SDT stated that failures by law firms to take appropriate steps to protect an employee from counter-inclusive misconduct, or to ensure a safe working environment, would also ordinarily be referred to SDT.
In addition to Bretherton, there have been two other cases before the SDT relating to sexual misconduct since the joint statement and enforcement strategy referred to above were published:
- Hutchings (12393 – 2022) – The respondent solicitor was fined £52,000, reduced to £30,000 to take into account his means, for conduct towards a female associate at a drinks event following a Society of Construction Lawyers lunch. The conduct consisted of unwanted and sexually motivated touching, and inappropriate and sexually motivated comments. The female associate was not known to the respondent at the time of the alleged incident and there was accordingly no abuse of position or seniority. The Tribunal found that the respondent had acted without integrity and in a way which diminished public trust and confidence in the profession.
- Respondent AC (12434 – 2022) – The respondent solicitor was fined £23,000 for his conduct towards a female trainee at a work event. He was recorded on the trainee’s phone singing an offensive song about her, accompanied by inappropriate hand gestures. The Tribunal accepted the respondent’s evidence that he acted in this way after he had been invited by the trainee to “say something outrageous”. Notwithstanding this, the Tribunal found that the respondent’s conduct lacked integrity and amounted to an abuse of position.
These fines are substantial in the context of previous fines which the SDT has ordered respondents to pay in cases of sexual misconduct. By way of example, in the case of Critchlow (11940-2019) the senior partner of a firm was fined £10,000 for inappropriately touching a paralegal at a drinks event. The fine of £52,000 which the SDT had initially considered to be appropriate in Hutchings would have been one of the largest ever ordered by the SDT, with the largest (£55,000) being ordered in a case involving not only a finding of sexual misconduct but an accompanying attempt to influence the investigation into the misconduct.
Notably in the Hutchings case the SRA sought permission to address the SDT on the question of sanction. The SDT permitted the SRA to do so, but ultimately stated the following (para. 10.13):
“In the event, the Tribunal was not assisted by Ms Bruce’s submissions and it paid no regard to them when it considered sanction. The reason for this was that Ms Bruce’s document consisted of; first instance decisions of the Tribunal, which were not binding, were by their nature, very fact specific and in any event were referred to by Mr Treverton-Jones and so the Tribunal could form its own view about their relevance; internal SRA guidance and enforcement strategies, which were also not binding on the Tribunal, which was independent of the SRA (emphasis added); and guidance and case law from other jurisdictions, which were also not binding on the Tribunal and which, by their nature, dealt with matters in a different context and background to the matter before this Tribunal.”
The SDT also noted that there was “nothing in its guidance or from any decision of the Administrative Court applicable to this jurisdiction that required a Respondent to be suspended in cases of this nature” (para. 49) before determining that the appropriate sanction in that case was a fine.
These decisions indicate that, notwithstanding the comments in the SRA’s enforcement strategy, it is the SDT that will determine whether a financial penalty is an appropriate sanction for sexual misconduct. Nevertheless the scale of the fines demonstrate a toughening stance, as indicated by the SDT’s comments in Hutchings that “(t) There was a clear need, having regard to the reputation of the profession and to the protection of the public, for the Tribunal to send the message that this sort of behaviour was completely unacceptable”.
Notwithstanding the trend of increasing sanctions for sexual misconduct, the SDT’s position, as reflected in its own sanctions guidance, is that a strike off is only appropriate where the seriousness of the misconduct is at the highest level, and the protection of the public and/or the protection of the reputation of the legal profession requires it. Accordingly, whilst the recent decisions of the SDT suggest that we can expect larger fines, and potentially suspensions, strike offs for sexual misconduct are likely to remain the exception rather than the norm.
In addition, the SRA’s recent focus on workplace environments, including the insertion of new rules into the Codes of Conduct requiring (among other things) managers to challenge unfair/disrespectful/discriminatory behaviour, means there are risks to law firms that fail to address or adequately investigate complaints, as well as to individual partners who witness such conduct and fail to challenge it (either in the moment or subsequently). Taken together, these changes and tightening sanctions show the SRA’s continued determination to tackle the issue of sexual misconduct in law firms.
If you have any questions arising from this article, please contact Andrew Pavlovic, who specialises in professional discipline and regulatory law.