Our October webinar (SRA sexual misconduct guidance and the regulation of solicitors’ private lives) proved to be very popular. We were very fortunate to be joined by Geoffrey Williams KC, a leading authority on solicitors disciplinary matters.

After a brief discussion about what the new SRA sexual misconduct guidance actually looks like (you can read more on this in our recent blog post here), we took a deep dive into how this guidance impacts the profession as a whole.

Two developments in the field of solicitors disciplinary were identified as being very significant to the discussion: firstly, that the SRA fining powers have been raised to £25,000, and secondly, fewer solicitors are finding themselves in front of a tribunal.

In Mr Williams’ view, the SRA have become the “prosecutor, judge and jury” of the profession. Further, the SRA places sexual misconduct allegations into a higher category of seriousness than most other behaviours.

This is reflected in the recent sexual misconduct guidance, which itself came out of the important Beckwith case. Following Beckwith, it was important that the profession received some certainty from their regulator.

Prior to Beckwith, so confident were the SRA, that they openly said they had over 100 similar prosecutions ‘ready to go’ to the tribunal. The fact that these have failed to materialise speaks volumes.

‘Conduct unbefitting’

Establishing that the SRA is not remotely interested in consensual relationships, the discussion turned to the issues that the regulator’s recent guidance attempts to address. Namely, to uphold Principle 5 (integrity) and Principle 2 (acting in a way that upholds public trust and confidence in the profession – akin to the old ‘conduct unbefitting’).

In Mr Williams’ view, the SRA guidance is wrong to place such an emphasis on ‘integrity’. He felt there was a limit to the reach of Principle 5. He stated that trustworthiness is important, and the real allegation in most sexual misconduct cases is Principle 2 – public trust and confidence. Principle 6 (equality and diversity), which is also often alleged in these cases, ‘doesn’t hit the spot’.

Context is key

Ultimately, these types of cases are entirely fact and context specific. It is impossible for anyone to set out a definitive list of what will be considered misconduct in any given situation. The SRA’s guidance is at least an attempt to set out the types of  behaviours in the ‘danger zone’, and what is likely to be viewed by the prosecution as aggravating and mitigating factors. Whether or not a tribunal would agree that core principles have in fact been breached in any given case, is a different matter.

To some extent the guidance recognises this. One person’s unwanted attention is another person’s “awkward, clumsy and unwise” advances. Whether the perpetrator’s actions make the victim feel uncomfortable is relevant, but there are obvious limits to this. Does “You look smart today” cross the line if the victim feels uncomfortable, even if the perpetrator meant it as an innocent compliment?

There are however clear red lines. Firstly, the exploitation and abuse of power for sexual purposes. That is the crux of the guidance, and it is what the SRA failed to establish in Beckwith. Secondly, unwanted touching. And thirdly, any behaviour that would be a criminal offence. None of these are controversial. They are obviously unethical behaviours that have no place in the profession.

Two factors for further consideration here are proximity to professional practice and the seriousness of the alleged conduct.

If a solicitor’s actions in their private life don’t touch the reputation of the profession, they don’t belong in the SDT.

However, “officers of the court do not belong in the dock.” A solicitor is always a solicitor, even when they close the office door. If the allegations are so serious that they border on criminal conduct, the SRA will get involved, regardless of where the conduct took place.

What should firms do in response to the SRA sexual misconduct guidance?

In light of the new guidance, Mr Williams’ top tips for law firms are:

• Most importantly, create a culture which:
  • Makes sexual misconduct unacceptable. Ensure there are clear ground rules. Don’t sweep issues under the carpet, or give perpetrators excuses and the benefit of the doubt. Take all allegations seriously and investigate them thoroughly. People do not allege sexual misconduct lightly, especially against those in a senior position.
  • Supports the wellbeing of everyone in the firm. This is an expectation not an aspiration – see the SRA’s recent guidance on this.
  • Allows people to report issues safely, without the fear of reprisals.
• Circulate the SRA guidance to all staff and partners. Firms must think about prevention and protect their position – making sure everyone has access to the guidance is an important part of that. Consider providing additional training on sexual conduct and the firm’s policies and expectations.
• Firms have a duty to report serious breaches – and situations which are capable of being breaches if proven – to the SRA. If you don’t, you and your firm will be in trouble. Given that we know the regulator takes allegations of sexual misconduct very seriously, the bar for reporting is set pretty low.
• Seek advice – this is a significant defence to any allegations that you have not done what you need to.
• Remember that the SRA is likely to get involved, even if the perpetrator is not a solicitor. The SRA Principles apply to all staff.