The Future of Sexual Misconduct Cases Before the SRA and SDT

The Future of Sexual Misconduct Cases Before the SRA and SDT

The Future of Sexual Misconduct Cases Before the SRA and SDT 2560 1709 Bethaney Durkin

Following the news that the SRA has 140 complaints under current investigation, our Account Director Bethaney Durkin examines the SRA’s efforts to enforce justice and equality in the workplace, in the wake of a recent chastening High Court judgment against the SDT.

The Solicitors Regulation Authority (SRA) confirmed last month that it has 140 complaints under investigation, following a substantial increase in recent years of reports of sexual harassment and inappropriate sexual behaviour at work. Following the scrutiny generated by the #MeToo movement, the regulator and law firms are understandably vigilant about being seen to take appropriate action when complaints of such misconduct are raised, which for firms includes informing the regulator.

This is a newer area of adjudication for the SRA and Solicitors Disciplinary Tribunal (SDT), but one it has pursued with enthusiasm. The SRA has stated that the rise in complaints began in 2017, sparked by #MeToo- and that some of these complaints relate to incidents from several years ago. The most recent public figures (covering the 12 months to October 31st 2019) showed the SRA had received 64 new complaints during that period. Prior to November 2017, the SRA had received less than 30 reports in the previous five annual reporting periods. The SRA adjudicated on a stream of sexual misconduct cases in 2019 and 2020, the most-high profile of which involved Ryan Beckwith – formerly an insolvency and restructuring partner at Freshfields – whose case went before a very public SDT tribunal. The Beckwith case generated hundreds of pages of media coverage and triggered debates across the City and the legal sector, over law firm culture.

Beckwith resigned in 2019 after being found in the SDT to have broken professional rules after allegedly engaging in sexual activity with an intoxicated younger colleague in 2016. He was fined £35,000 for professional misconduct and ordered to pay a further £200,000 in costs. The finding related to the SRA’s code which requires solicitors to “act with integrity” and “behave in a way that maintains the trust the public places in you and in the provision of legal services”. However, Beckwith’s challenge in the High Court has seen this decision overturned. In its ruling, the High Court said that the tribunal had lacked “coherence” in some of its findings; and made it clear that professional rules “may reach into private life only when conduct that is part of a person’s private life realistically touches on [his/her] practice of the profession… or the standing of the profession”.

SDT hearings into sexual misconduct  

What does this mean for future SDT hearings involving accusations of sexual misconduct? At its core, the issue with the Beckwith case and the hearing in front of the SDT was that the regulator’s remit was unclear. It is of course essential that allegations of inappropriate behaviour be thoroughly and urgently investigated, and clear expectations set and enforced by firms. It is right that the regulator should support this, not least as part of its role in supporting diversity and equality in the profession. However, many observers were uneasy on learning that the tribunal would not consider issues of consent, and that it acknowledged that Beckwith had not initiated sexual activity with the colleague, referred to as ‘person A’, whom he could not be accused of holding authority over since she was already leaving the firm. If these concerns were not in question, then the regulator seemed to be wading into an ambiguous grey area in a bid to govern interactions between two consenting adults.

While all would agree that legal advisers should be trustworthy and act with integrity for their clients’ interests, the extent to which matters in a solicitor’s private life might undermine their ability to do so can give rise to ambiguity. In this case, the regulator arguably sought to restrict a solicitor’s right to a private life, and their ability as individuals to behave in a way that might be regrettable – but crucially: not criminal – and with little bearing on their ability to deliver sound legal advice in their area of expertise. In this sense, the High Court’s finding provided the SRA and SDT with a clearer boundary within which to approach the outstanding 140 cases, by concluding that the professional rules do not have an “unfettered application across all aspects of a solicitor’s private life”. The SRA has confirmed it will not appeal the judgment.

The Future for Law Firms

However, while offering clarity to the SRA, this ruling may not provide similar comfort to law firms. Society is rightly less tolerant of inappropriate workplace behaviour today than in previous years, and some conduct that may have been brushed aside then would rightly be regarded as completely unacceptable now. For law firms, there is a clear risk that firms which do not strike the right tone and promote a culture with clear standards of behaviour – and crucially take appropriate action when those standards are not met – will face societal opprobrium and damage to their reputation. While the High Court has sought to provide clearer boundaries for the regulator over when to prosecute, law firms would be well advised to continue to review and develop their HR policies and continue to reinforce expected standards of behaviour to all members of the firm. Firms that are not seen to take these issues seriously as employers should not expect the same tolerance that an individual who strays into a grey area when acting in a private capacity may receive.

Will this chastening experience in the High Court prompt a reconsideration by the SRA of its approach to complaints involving sexual impropriety? This remains to be seen, but this ruling should not be seen as an invitation to firms to relax efforts to stamp out inappropriate behaviour in the workplace.