Local Law Society article December '22

Looking back at 2022, it has been a good year for many practitioners in that the Solicitor’s Regulation Authority (SRA), has abandoned plans to permit the Solicitors Indemnity Fund (SIF) to close with the resultant loss of post six-year run-off cover. It will instead replace SIF with an identical scheme that the SRA will manage. This will give some security and confidence to those solicitors who have already retired without a successor practise and those who may do so in the future. The details are currently being worked through, but, essentially, the SRA are going to use the SIF Scheme rules but intend to run the new scheme more cost effectively than that run by SIF Ltd.

Guidance: Sexual misconduct

In 2022, the SRA produced twenty-three sets of guidance by the end of November, and more is anticipated before the year end. Possibly the most controversial guidance is that which impacts on how a solicitor conducts themselves in their personal and private life. The majority of solicitors would have no qualms about the regulator taking action where that behaviour results in a criminal conviction, although perhaps there would be less support where it relates to minor motoring offences.

No solicitor would condone sexual assault, but the difficulty arises for regulators generally in cases where allegations have been made but either a prosecution was not proceeded with or even attempted.

The SRA has had to get to grips with how it will approach this, following the Beckwith case. In that case, a married City partner had some sort of consensual sexual encounter with Person A, who had been a more junior member of staff. Both parties were too drunk to remember exactly what happened after attending Person A’s leaving do and going back to Person A’s home.

At the Solicitors Disciplinary Tribunal (SDT) Beckwith was charged with a number of allegations but only two were proved, including a lack of integrity. He was fined £35,000.00. The SRA sought £300,000 in costs but these were reduced to £200,000.00 by the SDT.

Beckwith successfully appealed against the finding of a lack of integrity. The High Court placed considerable weight on the fact that there had been no abuse of seniority or authority over Person A. It held that there was a distinction between a solicitor acting to the detriment of his own reputation, his reputation as a provider of legal services and the reputation of the profession itself.

The Court also found that the costs claimed by the SRA were ‘alarming’. The Court also stated 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.”

The outcome of this case left the SRA in some difficulty, it has stated that since 2018 there have been 251 reports of alleged sexual misconduct. There were just 30 such complaints in the preceding five years. The SRA stated that at the time of publication of its guidance it currently had 117 ongoing investigations of alleged sexual misconduct.

The new guidance was published on 1 September 2022. The basic principle the SRA has set out is that, ‘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.’

The guidance then seeks to set out a series of potential circumstances which may impact on its decision to take regulatory action, but as one might expect, there are no hard and fast rules and the feeling you are left with when reading the guidance is that the SRA is saying it will know it when it sees it.

The guidance claims that it will help individuals to understand where ‘behaviour in their private and professional life, where they might overlap and why the distinction is important’

It also makes explicit that it is the duty of firms to ‘promote and ensure a workplace culture that does not tolerate sexual misconduct’ and that there is an obligation on firms to both investigate such matters internally and where appropriate report to the SRA.

Firms will need to consider proximity to practice and the guidance lists some examples which may or may not be proximate but this is not an absolute answer as this has to be considered together with the seriousness of the conduct and the ‘criminality’ of the conduct. The SRA make it clear that if they think it appropriate, it will make a report to the police but as they sate, ‘criminality is not a pre-requisite for us to make a finding of sexual misconduct’ and even if there has been an acquittal, it may also take action as, ‘professional misconduct is a wider concept than the criminal law’

Similarly, whilst the SRA will take into account consent, the indications are that they will also not take consent at face value and may seek to investigate further, stating that ‘[consent] can be affected by such factors as relative seniority/ inferiority, vulnerability, intimidation, and intoxication. In some cases, these can reduce and even remove the capacity of someone to give meaningful consent. Consent can also fluctuate from time to time and from context to context.’

The SRA will also consider vulnerability and has defined its considerations on vulnerability as:

‘Professional status (two parties of different seniority).

Professional relationship (a professional can be unduly dependent on a client (for supply of work) or a client can be unduly reliant on a professional for effective advice/representation, especially in certain areas of law, and especially if the work is publicly funded or pro bono because alternatives might be less readily available.

Fragile health (physical or mental).

Disability.

Age.

Sexual orientation.

Emotional, financial or career dependency.

Temporary vulnerability, such as intoxication (by alcohol or drugs)

Isolation or impaired access to effective support or remedies.

Cultural vulnerability.’

The SRA has also made it clear that intoxication can never be a defence to an allegation, but it may also consider it as an aggravating or mitigating feature.

The SRA has stated it expects firms to investigate and report and that its Enforcement Strategy makes it clear that it regards allegations of sexual misconduct very seriously.

All firms should put in place policies to make it clear what expectations they have of their staff (including non-admitted staff), when they will investigate and when they will report. To some extent, it is likely that the policies will mirror the SRA guidance.

It might also be useful to consider the SRA’s guidance on, ‘Workplace environment: risks of failing to protect and support colleagues’ published in February 2022.

Keeping of the Roll

From April 2023, the SRA will require all solicitors without practising certificates to apply to remain on the Roll of Solicitors of England and Wales. This will include those who are retired, working in-house, or who are not currently practising. There will be an annual administration fee currently estimated to be £20.

Failure to make the application will result in individuals losing the right to refer to themselves as a non-practising solicitor. The SRA point out this will also result in an inability to access the associated benefits the title brings, but it will also result in a loss of the burdens of being a solicitor!

i) https://www.sra.org.uk/solicitors/guidance/ sexual-misconduct

ii) Beckwith v SRA [2020] EWHC 3231 (Admin) iii) https://www.sra.org.uk/solicitors/guidance/ workplace-environment

Linda Lee has been Council Member for Leicestershire, Northamptonshire and Rutland since 2003. She is a past President of the Law Society of England and Wales and is the current Chair of the Professional Indemnity Insurance Committee and a member of the Policy and Regulatory Affairs Committee, the Regulatory Processes Committee and Access to Justice Committee.

She is current Chair of the Solicitors Assistance Scheme.

Linda is an experienced litigation solicitor and is a Consultant at Radcliffesle Brasseur where she specialises in solicitors’ disciplinary, compliance and regulatory work. She can be contacted by email at: lindakhlee@aol.com

Article by Linda Lee

Council Member