Earlier this Autumn, the Solicitor’s Regulatory Authority (SRA) published a new set of guidance regarding sexual misconduct. This came as the SRA revealed it has faced a huge rise in reports of sexual harassment or misconduct, with 251 reports in the last five years, compared to only 30 in the five years before that.
In the light of #MeToo, the regulator is seeking to establish a fair and comprehensive sexual misconduct policy. Although some fear these new guidelines show the regulator encroaching into the personal lives of lawyers, most notably explored in the High Court in the case of Ryan Beckwith, the SRA is seeking a solution to address what is an unfortunately a real problem many face in law firms.
Byfield’s Beth Durkin spoke to regulatory partner Andrew Pavlovic, at CM Murray, about the new guidance, and what it means for law firms.
BD: Under the new guidelines, what has changed in terms of the duties placed upon law firms to ensure that sexual misconduct is tackled effectively?
AP: The new guidance is mostly focussed on the circumstances in which the SRA will take action against individuals for sexual misconduct, particularly where such misconduct takes place outside of the office environment. Whilst the duties on firms have not changed as a result of this guidance, things firms should be considering are the following:
Whether work events should be focussed around alcohol – a significant number of the sexual misconduct cases we see involve alcohol, and whilst there is no issue with firms having Christmas or summer parties, firms should also be considering whether they can organise events where the focus is not on food and drink. Where alcohol is being served firms may wish to consider having a limit on the amount of alcohol served or having a designated partner who stays sober throughout.
In light of the guidance around “proximity to practice” firms may be considering how they can draw a clear dividing line between the work event, and any after party which happens afterwards. This could be by ensuring that the after party is not paid for by the firm or making clear in advance that the firm event finishes at a certain time.
BD: What sorts of penalties are in place for law firms who fail to do so?
AP: The SRA is currently consulting on new sanctions guidance which provides that, in the absence of exceptional circumstances, solicitors found to have committed sexual misconduct will face the minimum sanction of a suspension.
However the sexual misconduct guidance also makes clear that the SRA will take action against firms where they consider that firm culture has played a role or contributed to individual misconduct. This may be, for example, where a firm has failed to cultivate a “speak up culture”, meaning that prior incidents have not been reported, or where there has been a failure to deal with complaints against an individual whose behaviour has then escalated.
BD: Do the new stats published recently showing there have been 251 reports alleging sexual harassment or assaults by lawyers suggest the regulator is doing enough to tackle these issues?
AP: The statistics demonstrate that firms are aware of the need to self report sexual misconduct and that the SRA takes the issue of sexual misconduct seriously. However the number of reports also suggest that sexual harassment remains a significant issue in law firms and that more work needs to be done in this area. The SRA’s plan to tackle this issue include (1) introducing more severe sanctions for those found to have committed sexual misconduct (2) reiterating that they will take action against firms where cultural or systemic issues have contributed to misconduct; and (3) attempting to introduce an express requirement in the Codes of Conduct for Individuals and Firms to challenge unfair and discriminatory behaviour.
BD: The SRA requires an incident to be reported by anyone aware of or involved in the particular incident. How can law firms ensure there is a culture in place to ensure such incidents are reported?
AP: Law firms can encourage reporting channels through the following (1) strong leadership, with partners in the firm setting the standard and making clear what behaviour is and is not acceptable (2) having policies in place which set out clear reporting lines for those who have complaints (3) ensuring that any complaints that are made are properly investigated (as individuals are less likely to complain if they feel their complaint will be brushed under the carpet) and; (4) emphasising that no individual will be victimised for making a complaint and taking a zero tolerance approach to victimisation if it occurs.
BD: Do you think the latest guidance will help law firms to positively manage conduct issues within the workplace? What role do communications have to play in this?
AP: The latest guidance is useful as it helps clarify the circumstances in which the SRA will take action against individuals for conduct taking place outside the work environment. It also reminds firms of the obligations they have to tackle sexual misconduct and makes clear that the SRA will look at this issue holistically if it occurs.
As a starting point, all partners should be aware of the guidance so they can discuss it within the firm. If necessary, policies should be updated to reflect the guidance and specific training on those updates should be considered. More broadly, firms may wish to consider behavioural/conduct training as a way of developing the “speak up” culture that the guidance promotes.
BD: Does this represent another step towards a broader trend of a wider definition of professional misconduct, to include other types of non-criminal conduct, including outside of the traditional workplace?
AP: There are some in the profession that consider that the SRA is extending too far into individual’s private lives and investigating non-criminal conduct which is irrelevant to their legal practice. In the Beckwith case, the High Court made clear that solicitors should not be required to be “paragons of virtue” and that the SRA should only be investigating/prosecuting conduct which realistically touches upon the individual’s practice of the profession. Notwithstanding the Court’s warning, the new guidance makes clear that the SRA will investigate conduct where there are no criminal proceedings, or even where there has been an acquittal following a criminal trial, if they consider the conduct diminishes trust in the legal profession or suggests a lack of integrity. The SRA are particularly concerned with cases involving a senior/junior dynamic and an abuse of position.
Andrew Pavlovic is a partner specialising in SRA professional discipline and regulatory investigations at leading specialist partnership, employment and professional regulatory law firm CM Murray.
