Individuals share responsibility with their firms and the regulator for mental health issues affecting misconduct, a leading professional regulation solicitor told last week’s Legal Futures Regulation and Compliance Conference.
Paul Bennett, a partner at Bennett Briegal and specialist on regulatory and employment law, advised that when the Solicitors Regulation Authority’s (SRA) new rulebook came into force on 25 November this year, law firm managers had joint and several responsibility for the actions of employees. Knowing the rules would be ever more important.
However, he criticised the regulator for having hardened its position on prosecuting misconduct. He argued it had a choice on the matter and was not consistent when it came to mental health.
“They don’t have to put the Solicitors Disciplinary Tribunal (SDT) and the High Court in [a] very difficult position.”
The SRA should re-examine its approach, he said: “Perhaps it’s time for the regulator to look at when it’s appropriate to prosecute somebody when there is a mental health element, which they have done in one or two cases but they do not do it on a consistent basis.
“It’s that lack of consistency that is a concern.”
He said that the lessons of high-profile cases that ended up in the SDT, such as that of Sovani James, in which he acted (subsequently reversed by the High Court), and Emily Scott, were that if employees did make a mistake they should not attempt to cover it up but instead be open and transparent with the regulator.
Further, “where mental health is a factor, get evidence of it and get it really early so that evidence is contemporaneous rather than somebody trying to look back in a forensic way, perhaps two or three years after the actual incident”.
Mr Bennett urged law firms to support their staff and talk about mental health issues. Employees should be provided with a “safe space” in which they could talk freely to somebody internally about the pressures on them.
He said maintaining mental health was the responsibility of every individual as well and they should take steps to protect it. He himself went to the gym every day to give him “headspace”.
“Whatever you find to do, whether it is cooking, going for a walk, whatever you choose, find a way to look after yourself”.
He said law firm managers should be asking themselves questions. “Are you referring to your professional obligations and raising a flag in terms of what is expected of people? …
“In terms of your culture, are you open about mental health and the challenges that surround mental health? As supervisors, are you talking about ethics?”
Mr Bennett repeated his conviction that the SRA should activate its powers under the Legal Services Act 2007 to introduce ‘fitness to practise’ rules, which would give the regulator greater discretion over dealing with misconduct by creating a health jurisdiction for solicitors similar that enjoyed by professionals in healthcare.
This view was echoed at a later session by Ed Nally, president of the SDT.
Also speaking at the conference, solicitor Bronwen Still, who for years worked for the Law Society and the SRA on disciplinary matters, ethics and standards, and is chair of the legal support charity LawCare, said it was good that wellbeing issues had risen up the agenda in the past three or four years.
However, she said: “The evidence suggests that a lot more needs to be done by firms to embed good practice, and to look more holistically about how they operate as a firm and how they deal with their staff.”
She added that LawCare collected information about mental health issues and, year-on-year, top of the list of issues was stress. Other issues included depression, anxiety, eating disorders, self-harm, and dealing with bereavement.
She said that “worryingly in the past year” the charity had seen a nearly 50% increase in the number of calls it had received on the topic of bullying.