Clarity on enforcement?

Sexual misconduct in the solicitors’ profession has been a concern for the SRA for the past five years. The SRA’s early policy response to these issues involved publishing a warning notice on the inappropriate use of non-disclosure agreements (NDAs). This was prompted by the SRA receiving reports that NDAs could prevent victims of sexual harassment from speaking to relevant authorities. The warning notice, currently in its third revision, is relevant to all NDAs regardless of context; however, the SRA’s concern about improperly drafted NDAs in the context of inappropriate sexual behaviours is evident from its first iteration: “We are concerned to ensure that you do not … use NDAs in circumstances in which the subject of the NDA may, as a result of the use of the NDA, feel unable to notify the SRA or other regulators or law enforcement agencies of conduct which might otherwise be reportable [and] …fail to notify the SRA of misconduct, or a serious breach of our regulatory requirements, by any person or firm: including wrongdoing by the firm, or harassment or other misconduct towards others such as employees or clients.” 

Then last autumn the SRA published specific guidance on sexual misconduct to help solicitors and firms:

• better understand the SRA’s approach to allegations of sexual misconduct, what behaviours are unacceptable and when they might become a regulatory matter 
• identify the boundary between an individual’s behaviour in their private and professional life, where they might overlap and why the distinction is important
• understand the SRA’s expectations that firms will promote and ensure a workplace culture that does not tolerate sexual misconduct, and 
• understand firms’ obligations both when investigating these matters internally and reporting them to the SRA.

Defining ‘sexual misconduct’

The guidance defines ‘sexual misconduct’ as sexual behaviour that raises a regulatory issue. This will include allegations which amount to potential breaches of the SRA Principles, notably to act with integrity (Principle 5), in a way that upholds public trust and confidence in the profession (Principle 2), and encourages equality, diversity and inclusion (Principle 6). Allegations of abuse of position to initiate or pursue an improper sexual or emotional relationship or encounter with a client, colleague or anyone else may also amount to a breach of paragraph 1.2 of the SRA Code of Conduct for Solicitors, RELs and RFLs: “You do not abuse your position by taking unfair advantage of clients or others.” In addition, the SRA is shortly to introduce a new paragraph to the Codes of Conduct in respect of health and wellbeing in the workplace. This will inevitably come into consideration in relation to allegations of sexual misconduct that post-date the introduction of the paragraph.

Private and professional boundaries

The SRA will take an active role in enforcing breaches of the Principles, particularly in respect of integrity and upholding the confidence and trust of the public, even where such breaches occur in the private lives of those it regulates, on the basis that it would call into question an individual’s fundamental suitability to be a solicitor. 

Several cases, notably Beckwith v SRA [2020] EWHC 3231 (Admin), have challenged the SRA’s wide regulatory remit. Common indicators as to how far the SRA might reach into private life may be drawn from the case law. Breach of the SRA Principles, particularly the obligation to act with integrity and to uphold public trust and confidence, are likely to be made out if the conduct arising in one’s private life is close to professional activities, or reflects on how a solicitor might behave in a professional context. Evidence of an inherent imbalance of power and a misuse of authority, or an abuse of position will also justify SRA action. 

The SRA’s new guidance provides some clarity. While acknowledging the blurred line between an individual’s private and professional life makes it difficult in certain situations to make judgements about whether any conduct constitutes a regulatory matter, the guidance states: “The closer any behaviour or alleged wrongdoing touches realistically upon the individual’s practice or reflects how a solicitor might behave in a professional context, the more likely it is that the conduct may impact on the individual’s integrity or trust in the profession. Sexual misconduct might not directly relate to an individual’s work as a lawyer or the work being done by a firm but have a connection to practice, their role, and their position in relation to the recipient of the behaviour. 

“Sexual misconduct might also happen entirely outside of practice and not directly relate to the practice of the individual but might be so serious that we consider it raises a regulatory issue. Some sexual misconduct allegations totally removed from legal practice might still be so serious that they damage public confidence in the profession and therefore might still amount to professional misconduct. Examples include criminal convictions for sexual offences as well as serious non-consensual sexual touching even where no criminal proceedings are planned, current or concluded.”

‘Proximity to practice’ considerations will include whether the conduct:

• took place on practice premises
• arose from a practice context (including official or informal firm events at a firm’s premises or in other locations)
• involved a colleague or a client or any other professional acquaintance
• stemmed from a professional event albeit one which was not firm-sponsored, such as a networking or training event, or
• took place after a firm event or event linked to the profession but at a separate location or venue such as informal after-event drinks at a pub or in someone’s home.

The new paragraph to the Codes of Conduct will introduce a second proximity test as the obligation to treat fairly and with respect, and to not bully or harass or discriminate unfairly, and is expressly limited to “colleagues”. That includes not only work colleagues but also professional contacts such as barristers. Any enforcement action based on this new provision can therefore rely simply upon the colleague status of the individual affected rather than seeking to connect the actions to the work environment. 

Seriousness of conduct 

In line with its Enforcement Strategy, the SRA will consider seriousness of conduct alongside proximity to practice. Where there is evidence of sexual motivation, the misconduct becomes more serious. Other criteria include whether the conduct involved: 

• physical contact, for which the type and place of touching, level of intimacy and duration will be relevant factors 
• evidence of aggravating factors of violence, exploitation, threats, malice, coercion, pressure, manipulation, victimisation, harassment, discrimination, intimidation, influence, breach of privacy or bullying
• repetition
• conduct directed to a junior colleague or vulnerable individual or more than one individual 
• conduct which is known and unwelcome, and 
• spontaneous or planned conduct. 

Relevant context

The SRA will also consider the relevant context in relation to reports of sexual misconduct, including the following factors:

• criminality of the conduct (though criminality is not a pre-requisite for the SRA to make a finding of sexual misconduct)
• issues of consent
• vulnerability of the alleged victim (arising from differences in seniority in terms of professional status, physical or mental ill-health, disability, age, sexual orientation, and emotional, financial, or career dependency), and
• intoxication. 

At firm level, the SRA expects firms to foster a culture of zero tolerance to sexual misconduct, where staff feel they can speak up freely and report matters to their firm and to the SRA. Firms are expected to have robust systems and processes and policies in place to properly manage and investigate complaints of sexual misconduct.

Stricter sanctions

Separate to the SRA guidance on sexual misconduct, the SRA consulted last year on a new approach to financial penalties which included proposed amendments to the Enforcement Strategy, such that allegations of sexual misconduct, non-sexual harassment, or discrimination will, generally, be deemed unsuitable for a fine, unless exceptional circumstances apply. Instead, such matters will be referred to the Solicitors Disciplinary Tribunal (SDT) with a recommendation of strike off or suspension. 

Exceptional circumstances are suggested to include cases where the SRA are satisfied there is no ongoing risk associated with the inappropriate behaviour. This is likely to reflect a one-off incident or remark that is misjudged but not ill-motivated. In such circumstances, the SRA may consider a sanction other than suspension or strike off to be appropriate (such as a rebuke or, in extremely rare cases, a financial penalty) where there is evidence that the person apologised promptly, unprompted, and has accepted allegations in their entirety.

The proposed almost categorical referral to the SDT for all allegations of sexual misconduct presents difficulties. Not all cases involving such allegations will be so serious that they present a high risk requiring the most serious action. The exceptional circumstances gateway has also been cast narrowly. The facts of a particular case will thus be of limited relevance to the SRA’s decision to refer to the SDT, putting the SRA at risk of acting arbitrarily and in a way that is potentially incompatible with the regulatory objectives and better regulation principles (the SRA has a duty to promote the regulatory objectives under section 28 of the Legal Services Act 2007).

Looking ahead

Sexual misconduct within the solicitors’ profession remains a key concern for the SRA. The persistent lack of clarity as to how far the SRA will extend its reach into allegations of sexual misconduct arising from the private domain has to some extent been remedied by its new guidance on sexual misconduct. Further, a new provision in the SRA Codes of Conduct will anchor the requirement for solicitors and firms to treat colleagues fairly and with respect, and not to bully or harass them or discriminate unfairly against them; evidently the SRA’s attempt to address the difficulties presented in Beckwith, which sought to narrow the SRA’s jurisdiction over a solicitor’s private conduct to explicit breaches of the Code of Conduct.

A more worrying development, however, is the SRA’s intention, save for in exceptional circumstances, to categorically refer all allegations of sexual misconduct to the SDT with a recommendation of suspension or strike off, irrespective of how serious such allegations may be. The impact of this is yet to be seen. Importantly though, the tribunal will apply its own guidance in determining the appropriate sanction for proven sexual misconduct, which historically it has determined by way of a financial penalty. Although the SRA may recommend the imposition of a suspension or strike-off by way of sanction, the tribunal is by no means bound to agree.