Unfortunately, the evidence suggests there are firms that are failing to foster a respectful and healthy workplace culture that deters sexual misconduct.
It’s now more than four years since the regulator issued its 2018 warning notice about the use of non-disclosure agreements (NDA), for instance to deter or quell complaints about misconduct. Yet the number of complaints made to the Solicitors Regulation Authority (SRA) about sexual misconduct has shot up since then. By 1 September this year, more than 250 complaints were filed. To put into context, just 30 reports were made to the SRA in the five years prior to 2018.
So concerned is the regulator that it has just issued new guidance on sexual misconduct in law firms (as well as updating its guidance on acting with integrity). The new guidance is aimed at solicitors’ firms and individual solicitors and sets out the SRA’s current approach where allegations of sexual misconduct are made.
The Beckwith High Court ruling in 2019 proved a seminal moment in how regulatory proceedings involving alleged sexual misconduct should be approached. The court overturned the fine imposed by the Solicitors’ Disciplinary Tribunal on a Freshfields partner, saying sexual misconduct cases should be confined to situations where the SRA’s Code of Conduct was clearly engaged (it ruled that the finding that a night spent with a junior colleague undermined public trust was flawed).
One of the key takeaways from the judgment was that “common sense dictates" that upholding principles of acting with integrity and acting to maintain public trust could reach into a professional’s private life.
The new guidance now clarifies this distinction: ‘sexual misconduct’ falling within the SRA’s scope is specifically conduct related to sexual behaviour which “raises a regulatory issue”. But it seems, from the wording of the guidance, that it extends to ‘emotional’ behaviour. For instance, it gives the example of a partner exploiting or abusing their professional position of trust to “pursue an improper sexual or emotional relationship with a client or colleague”.
At what point does the ‘behaviour’ cross the line? In some cases, it could prove a delicate balance but, the High Court said in Beckwith, “it must depend on a proper understanding of the standards contained in the Handbook”. The SRA says the closer it touches on the individual’s practice or reflects how a solicitor might behave professionally, the more likely the conduct may impact on their integrity or trust in the profession. The regulatory principles are crucial here: solicitors are required to act with integrity and in a matter that upholds public trust and confidence. Conduct in or outside of the workplace which undermines these principles is likely to raise a regulatory issue.
In assessing whether to take further action in response to an allegation, the SRA indicates it would consider the proximity of the alleged behaviour to the solicitor’s professional practice; the seriousness of it; its potential criminality; issues of consent; and of vulnerability of the alleged victim. Incidents of unwanted sexual behaviour is frequently fuelled by drink; but intoxication will not, says the guidance, be a defence to an allegation of sexual misconduct.
Firms are expect to report misconduct allegations to the SRA if they are capable of amounting to a serious rule breach; and they must consider the 2019 guidance on Reporting and Notification Obligations
Prevention is always better than ‘cure’: the SRA makes clear it expects firms to promote and ensure a workplace culture that is intolerant of sexual misbehaviours. Law firms should start now to build a robust culture and policy of zero tolerance for the sake of their staff and clients and their firm’s reputation.
All firms – including those who already boast a healthy workplace culture - are urged to familiarise themselves with the new guidance, taking further action if necessary.