Amanda Croxon, risk and compliance solicitor at Howard Kennedy, considers the implications of the Beckwith appeal for the conduct of staff in and out of the workplace.
The High Court overturned the Solicitors Disciplinary Tribunal (SDT)’s decision that Ryan Beckwith had breached Principle 2 (to act with integrity) and Principle 6 (to behave in a way that maintains the trust the public places in you and in the provision of legal services) of the 2011 Code after spending the night with a junior colleague in 2016.
The initial SDT hearing
The case generated a considerable amount of publicity at the time the SDT hearing took place—in 2019—initiating debate over the appropriateness of the conduct concerned.
It also cast a spotlight over what is acceptable behaviour for solicitors in their professional lives (as opposed to their private lives).
The High Court ruling
The High Court ruling made it clear that whilst solicitors might expect there to be some scrutiny of their private lives that is not to suggest that every aspect of a solicitor’s life should be liable to public scrutiny.
Such rules should only apply when part of a person’s private life realistically touches on their practice of the profession or the standing of the profession.
Although the High Court judgement exonerated Beckwith in respect of his misconduct it should not be seen as a green light for inappropriate behaviour.
Solicitors are all still bound by the SRA’s Codes of Conduct and whilst no-one wants to stop staff having fun at office parties, firms need to consider what social events are suitable and whether alcohol should be limited or even banned at work functions.
As many of us are still remote working, there is less urgency to create safeguards but as staff return to the office, it is likely that many firms will want to arrange get-togethers for their employees.
It is therefore worth thinking now about the safeguards you have in place and whether they need to be updated to ensure that everyone has a good time and remains well within the boundaries of acceptable behaviour.
Whilst Beckwith was about conduct during a works social night out, with the rise of social media, the SRA has become increasingly interested in what solicitors’ say in their private lives outside of work and in recent years has picked up on what has been said in tweets and other publicly available posts, such as Facebook.
The challenges and stresses caused by the COVID-19 pandemic, the changes in how and where we do business, and the rise in social media all have the potential to increase risk in conversations taking place in person and online.
It is therefore essential that all firms have in place a policy to protect their business during the use of social media.
What can you do?
There are number of things firms should consider to minimise the risk of scrutiny from the SRA arising from these types of situations including the following:
- ensure your staff know and understand their obligations under the 2019 Codes through information, training and circulation of relevant guidance such as SRA warning notices and Law Society practice notes
- lead by example by having appropriate controls and systems in place that demonstrate that the actions and communications of your managers reflect the standards of the profession
- your compliance officers should also take responsibility for making sure the firm complies with its regulatory obligations
- adopt an open, honest and supportive culture where employees feel able to speak out and report problems
- ensure you have a whistleblowing policy in place to reassure staff that it is safe and acceptable to raise any concerns they may have
- have effective and robust policies and procedures so staff are aware of the expected standards of conduct and managers have a framework within which to deal with any problems that arise
- make sure your grievance and disciplinary policies are up to date
- have a social media policy in place and make sure all staff understand it
- consider introducing a policy targeted specifically at the conduct expected of staff at work social events
- ensure all your policies are regularly updated, communicated to staff and easily accessible
- make sure there is effective leadership at all levels with good reporting structures
Reporting to the SRA
If you are faced with a situation that involves having to investigate an allegation of inappropriate sexual misconduct or the use of offensive remarks on a social media platform then you will need to decide whether you should be self-reporting the matter to the SRA.
Rule 3.9 of the Firm’s Code of Conduct and Rule 7.7 of the Solicitors Code of Conduct states that you should report promptly to the SRA any facts or matters that you reasonably believe are capable of amounting to a serious breach of your regulatory requirements.
The SRA does not define ‘serious’ but there are factors you should consider when deciding whether to report including:
- the nature of the allegation
- the intent and motivation of the alleged wrongdoer
- the harm and impact suffered by the complainant
- the vulnerability of the complainant
- the regulatory history of the alleged wrongdoer, and
- to what extent remediation is possible
When to report is also not entirely clear although the SRA has said it is important that they receive information at an early stage where this may result in regulatory action.
That is not to suggest that firms should not investigate matters or exercise their judgement in deciding if a potential breach has occurred but the SRA is keen for firms to engage early in their investigative process and to keep them updated on progress and outcomes.
When to report will ultimately need to be considered on a case by case basis in consultation with your COLP.