The Solicitors Regulation Authority’s (SRA) proposed new rule requiring solicitors to treat colleagues with respect is in part aimed at filling a hole exposed by the prosecution of Ryan Beckwith, it was claimed yesterday.
A webinar hosted by City firm Kingsley Napley heard that the change would likely lead to more reports to the SRA.
The regulator is currently consulting on adding to the codes of conduct an explicit obligation on both individuals and firms to treat colleagues fairly and with respect; not to bully, harass or unfairly discriminate against them; and requiring firms and individuals to challenge behaviour which does not meet this standard.
The High Court ruled in 2020 that Mr Beckwith had not breached the SRA Handbook by having drunken sex with a junior lawyer when a partner at City giant Freshfields Bruckhaus Deringer, although his conduct was “inappropriate”.
Overturning a £35,000 fine imposed by the Solicitors Disciplinary Tribunal, the court identified as crucial the fact that the tribunal did not find the solicitor’s conduct to be an abuse of a position of seniority or authority.
A significant issue in the case was that the tribunal found Mr Beckwith in breach of two of the guiding SRA principles – acting with integrity and upholding public trust – rather than a specific rule.
The High Court said: “Our analysis is premised on the need to define the content of the obligation to act with integrity, which might otherwise be an obligation at large, by reference to the standards set out in the Handbook.”
Kingsley Napley partner Iain Miller, a leading figure in legal regulation, told the webinar that a case similar to Beckwith would likely lead to a different outcome with the proposed rule in place.
“It does articulate directly what I think what we would get from the principles and that was the issue with Beckwith,” he explained.
“The High Court was effectively saying ‘where is the rule?’. Well, here is the rule that makes it quite clear that this is the way one ought to behave. It does make the SRA’s life a bit easier when they come to look at these cases and particularly if they come to prosecute them.
“That may not be expressed in the consultation in these terms but no doubt that’s part of the thinking behind it.”
Tim Dutton QC, who is often instructed by the SRA in disciplinary cases, agreed. Making clear he was not speaking about the Beckwith case, he said the situation of “a senior solicitor in a managerial position getting a colleague drunk and having consensual sex outside the workplace” was one that involved a lack of respect.
“It seems to me that the rule is intended to pick up on that kind of disrespectful conduct.”
The SRA would not have to prove “evidentially difficult concepts like consent or abuse of position”, Mr Miller added. “You could simply say it breaches this rule, here are the bare facts. It provides a much easier route.”
Mr Dutton said his own caseload of solicitor misconduct cases – most of which were post #MeToo cases involving alleged bullying, sexual misconduct, harassment or discrimination – indicated that “we do have a problem which the regulator needs to address”.
He continued: “This drafting is undoubtedly wider than what we have currently… and where you have a rule, culture should follow. So to that extent I think it’s helpful.”
Mr Dutton noted that the requirements to treat colleagues with respect and not to bully, harass or discriminate against them were separate and Jo Douty, the COLP at City firm Macfarlanes, questioned what type of behaviour between these two obligations the SRA was targeting.
It would be important to see what changes the SRA made to its enforcement strategy once the rule was in place, she said, as this would make clearer what it has in mind.
She acknowledged there were some “deep-seated issues” in the profession that were very difficult to deal with but suggested that a lot was down to unconscious bias.
Macfarlanes, like other firms, was doing a lot of work to address this, she said, such as reverse mentoring and having a network of ‘guardians’ who provide a confidential space to share issues that employees feel they need to discuss.
Ms Douty said this was the way to deal with these issues, rather than changes to the SRA rules.
The panel agreed that it would be difficult for the SRA to establish a failure to challenge disrespectful behaviour, especially where it was a matter of unconscious bias.
Mr Miller said the obligation would nonetheless “terrify” people – what, for example, should a junior lawyer do if they witnessed disrespectful conduct at a firm social event? Would it be sufficient to inform the firm rather than challenge the misconduct directly?
Mr Dutton said informing the firm’s COLP would likely be enough – so long as the information was then acted on. If a firm tried to sweep the conduct under the carpet, the individual may have to report it to the SRA.
Mr Miller predicted that firms would have to show to the SRA that they had policies, procedures and training in place to address disrespectful conduct.
He and Mr Dutton both predicted the new rule could lead to more reports being made to the SRA.
Mr Miller said: “I could see people being disappointed by their pay review and saying ‘I’m going to report you to the SRA’. It’s a very widely worded rule that people might think they fall into it.” But he added that he would hope the SRA would not consider complaints like this.
Employment tribunal claims made against firms would also likely have to be reported to the SRA under the proposed rule.
Mr Miller concluded that this would not be “a minor tweak” to the codes of conduct and the change would take “a few years” to settle down.