Law firm managers, but not junior staff, are set to have a regulatory obligation to challenge colleagues who treat others unfairly or without respect, the Solicitors Regulation Authority (SRA) has said.
It is also pressing ahead with extending this beyond the office into certain work social situations, despite opposition from the profession.
The SRA issued a consultation in March on a proposed addition to the codes of conduct placing an explicit obligation on both individuals and firms to treat colleagues fairly and with respect, and not to bully, harass or unfairly discriminate against them; and requiring firms and individuals to challenge behaviour which does not meet this standard.
The SRA board heard last month that respondents “generally accepted that there are issues with unfair treatment in the legal profession, and most individual respondents welcomed the proposed new rules”.
However, many organisations and some individuals queried how widespread the problems were, while some, including the Law Society, argued that the regulatory risks could be managed using existing rules and additional guidance.
But the paper before the board said there was “clear evidence of problems with unfair treatment in the profession” – between 2015 and 2021, it received on average 462 reports a year about bullying or harassment, of which on average 144 met the test to be investigated. This indicated that the new rule was needed.
While it was “reasonable” to require managers in a firm to challenge unfair treatment, the SRA has rowed back from mandating all staff, acknowledging that it could “cause undue anxiety for junior staff and those who are themselves being treated unfairly”.
Instead, new guidance would “encourage” them to challenge “where they are able to do so”.
Speaking to the media yesterday, SRA chief executive Paul Philip stressed that this was primarily aimed at behaviour “universally recognised” as unacceptable.
The rules were principally intended to cover the workplace but the SRA said they would extend to “serious unfair behaviour” that occurred “away from the delivery of legal services, but clearly in the context of a work rather than purely personal relationship – for instance at work social events and conferences”.
This was the one consultation question that attracted more opposition than support, with the likes of the Law Society, Employment Lawyers Association and Sole Practitioners Group arguing that there was no evidence to support regulatory intrusion into personal relationships.
But the SRA said the 2020 High Court ruling in Beckwith confirmed that its regulatory remit could extend into private life.
“However, it also requires us to provide identifiable standards for solicitors – and this is consistent with the introduction of rules on unfair treatment.” An expert said earlier this year that this would make life easier for the SRA.
The guidance issued alongside the rule would be clear that the SRA would only act in such situations “where that behaviour touches on the practice or standing of the profession in a way that is demonstrably relevant”.
The board concluded that it was “minded” to make the new rule but said it first wanted to see the accompanying guidance.
However, it is definitely moving ahead with giving the SRA clear powers to act where solicitors’ fitness to practise is in question due to health issues.
In response to concerns expressed in the consultation, the SRA stressed that the changes would “only bite in the very small number of cases”.
These were where a solicitor has a health condition, that condition means they could not safely practise or engage with the SRA’s regulatory processes, and the solicitor has not taken their own steps to manage the impact of their condition, “for instance by restricting their practice or obtaining the necessary support from their firm”.
This meant the regulator would not take action simply because someone has a health condition; solicitors would not have to declare it on renewing their practising certificate, for example.
“We will only act in those cases where this combination of circumstances comes to our attention and we are concerned that the solicitor poses significant risks to clients or the public. We typically manage those risks by using proportionate conditions to limit the scope of the solicitor’s practice.”
The SRA said a snapshot of its cases in 2021 showed that concerns had been raised about a health condition affecting participation in an investigation or disciplinary process in around 5% of them.
“We have seen two recent cases where a Solicitors Disciplinary Tribunal hearing has been stayed indefinitely for health reasons but the solicitor remains able to work”.
The most high profile of these was the solicitor who acted for Harvey Weinstein on a non-disclosure agreements.
“In such cases the solicitor is effectively practising without meaningful regulatory oversight, and that poses an unacceptable regulatory risk.”
Mr Philip said that, while each case would turn on its individual facts, the general principle would be that, if a solicitor could not be “held to account” due to their ill-health, they should not be able to practise either.