Beckwith: SRA’s New Guidance
The Solicitors Regulation Authority has updated its guidance on acting with integrity and produced new guidance on sexual misconduct which it must hope will deal with the Divisional Court’s misgivings in Beckwith.[1]
In Beckwith the Solicitors Disciplinary Tribunal found there had been a sexual encounter following a drinking session near the firm’s office. It was not disputed that the solicitor was in a position of seniority and/or authority over Person A.
The Tribunal also found that the judgment of each was impaired by alcohol, Person A was not vulnerable and although the solicitor was invited in he knew it wasn’t for sexual activity. It rejected the allegation that the solicitor had acted in abuse of his position of seniority or authority but found instead that by engaging in sexual activity with Person A he had acted inappropriately.
On those findings it concluded that the solicitor’s actions were in breach of the obligation to act with integrity (Principle 2) and also a breach of the requirement to behave in a way that maintains the trust the public places in solicitors and the provision of legal services (Principle 6).
Dame Victoria Sharp P said that having rightly concluded that no abuse of authority had occurred the Tribunal then fell into error by categorising those events to be a breach of Principle 2. He had not taken advantage of Person A so to find that he had fallen below accepted standards was not coherent. The “standards” were not ones properly derived from the Handbook.
The approach of the court was not any form of permission to expand the scope of the obligation to act with integrity simply by making rules that extended ever further into personal lives. The “outcomes” and “indicative behaviours” could not extend beyond what was necessary to regulate professional conduct and fitness to practise and maintain discipline within the profession.
The solicitor was not in breach of Principle 6. What he did affected his own reputation but there was a qualitative distinction between conduct of that order and conduct that affected either his own reputation as a provider of legal services or the reputation of his profession.
There could be no hard and fast rule that regulation under the Handbook may never be directed to the regulated person’s private life, or that any/every aspect of private life was liable to scrutiny. But Principle 2 or Principle 6 may reach into private life only when conduct that was part of a person’s private life realistically touched on his practise of the profession or the standing of the profession. Any such conduct must be qualitatively relevant.
The Regulator’s new guidance on sexual misconduct sets out what is expected from firms and individuals, illustrates the types of behaviours that are unacceptable and may lead to regulatory action emphasising that not all sexual behaviour raises a regulatory issue.
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. But the updated guidance on integrity says, however, where no such connection exists the SRA will still take action where the conduct is sufficiently serious and morally culpable as to call into question whether they meet the high personal standards expected from a member of the solicitor’s profession.
The guidance is wide ranging and sets out many examples. It is essential reading for all solicitors and can be found here: SRA | Guidance: Acting with integrity | Solicitors Regulation Authority It is designed to be helpful but there are many fine lines and with 117 ongoing investigations one can’t help but fear that there will be more cases tested in the Divisional Court.
[1] Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin)