Following a surge in complaints, the Solicitors Regulation Authority (SRA) has published new guidance addressing how allegations of sexual misconduct should be considered by the Solicitors Disciplinary Tribunal (SDT).
In particular, the issue of where the line is to be drawn when adjudicating upon cases that impinge upon a professional’s personal life, following the decision in Beckwith v SRA.
In a statement discussing its new guidance, the SRA confirmed that, since 2018, there have been 251 reports of alleged sexual misconduct. In contrast, there were just 30 complaints of this nature in the preceding five years. The SRA currently has 117 ongoing investigations of alleged sexual misconduct.
The SRA acknowledges that the extent to which a solicitor’s regulatory obligations extends to conduct occurring in their private lives is a key issue in such cases.
Paul Philip, SRA Chief Executive, said:
We take reports of sexual misconduct seriously. These can be sensitive and difficult issues and we want to be clear about our expectations, not least for firms, as people often come to us because they are dissatisfied with the way their firm has dealt with their concerns.
Importantly, as we said in 2020, the Beckwith judgment made it clear that it was "common sense" that upholding our principles of acting with integrity could reach into a solicitor's private life. So alongside, we are also publishing updated guidance on acting with integrity. I urge everyone to take time to read the new guidance.
In its determination, the SDT found that Mr Beckwith failed to act with integrity and undermined public trust in the context of a sexual encounter with a colleague. On appeal, whilst the High Court recognised that there can be no, “hard and fast rule” as to the extent to which a professional’s private life can be subject to scrutiny, the SDT’s decision was quashed. In doing so, the Court held that, “regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.”
Of course, sexual misconduct can occur in the workplace or in a manner that is directly and obviously relevant to an individual’s professional practice. However, in other instances, the line between a person’s professional life and private life can become blurred, which has led to uncertainty about whether and when certain conduct ought to fall within a regulator’s remit.
The new 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.
In addition, the guidance states that even in cases where sexual misconduct occurs in a context that is entirely distinct from of an individual’s practice, it could be of such a nature and degree that the SRA considers it as a regulatory issue.
Where, for example, allegations are so serious that they could damage public confidence in the profession, the conduct may be considered as professional misconduct.
The guidance proceeds to set out relevant considerations for the SDT in assessing the proximity of an individual’s conduct to their professional practice, as well as criteria for assessing the seriousness of the conduct in question.
Significant aggravating factors in relation to the seriousness of the conduct include:
- suggesting or demanding staff wear certain attire;
- sexualised conduct accompanied by threats if the conduct is reported; and
- intentionally plying someone with significant quantities of alcohol, which might suggest that it is being done to lower both physical and emotional resistance, whilst also reducing their ability to recollect events.
The SRA provides specific guidance in relation to the use of social media. It states that the expected standards do not vary where communication is via social media, rather than more traditional means. The guidance goes on to highlight that social media, in itself, may serve as an example of where lines between personal and professional life can become blurred.
Enjoy That? You Might Like These: