Infolegal - SRA’s Guidance on Sexual Misconduct

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SRA’s Guidance on Sexual Misconduct

Last month saw the publication by the Solicitors Regulation Authority (SRA) of guidance concerning sexual misconduct. This guidance has been produced following wide ranging consultation with law firms, the public and professional representative groups and has taken account of the relevant parts of recent court judgements.

According to the SRA, the number of complaints about sexual misconduct at law firms has risen significantly since it first issued a warning notice about non-disclosure agreements in March 2018. Since then there have been 251 reports relating to potential sexual misconduct, compared with just 30 in the preceding five years, and as of 1 September 2022 it has 117 ongoing investigations.

Sexual misconduct was much in the legal news a couple of years ago, and eventually resulted in a substantial costs award against the SRA in the case of Ryan Beckwith v SRA [2020] EWHC 3231.

Sexual misconduct Sexual misconduct is defined in the guidance as “sexual behaviour which raises a regulatory issue”. Fortunately for those who have met their spouses or life partners as colleagues at work, the guidance states that “consensual sexual relationships between colleagues will not, without more, be investigated or sanctioned”, although “a person must not abuse their professional position to initiate or pursue an improper sexual or emotional relationship or encounter with a client, a colleague or anyone else “.

Thus the concerns are more to do with unwanted sexualised comments or behaviour, or using an imbalance of professional position to pursue improper sexual or emotional encounters. This is highlighted by Example 1 in the guidance which looks at unwanted sexual attention in the workplace and which highlights situations that might occur including comments which the perpetrator regards as simply flirting, banter or even complimentary but which the recipient finds to be offensive or derogatory. It may even involve comments made to, or overheard by, third parties and recognises that the words or actions in question might be “simply awkward, clumsy and unwise”.

Indeed, the seriousness of the conduct in question is something that the guidance specifically addresses. Thus where the SRA receives a complaint about unwanted comments or touching and there is evidence of a sexual motivation, then the misconduct becomes more serious. The example given in the guidance is that someone being overly friendly and putting an arm around someone’s waist might be objectionable to an individual but is not necessarily serious enough for regulatory action to be taken. However, intentionally touching the bottom or breast would clearly be more sexualised and therefore more serious. The SRA sets out a series of criteria relevant to an assessment of gravity, which includes whether:

● physical contact was involved;

● contact was accompanied by sexualised language;

● there was any element of violence, exploitation, threats, malice, coercion, pressure, manipulation, victimisation, harassment, discrimination, intimidation, influence, breach of privacy or bullying;

● the conduct was repeated;

● the perpetrator should have been aware that their conduct was unwelcome; and

● the conduct was spontaneous or planned.

However, the overall seriousness of the sexual misconduct will always be determined in the light of all the circumstances of the matter.

Proximity to practice An issue which inevitably arises, and which the SRA has attempted to address in the guidance using a number of illustrative examples, is as to how far a solicitor's regulatory obligations apply to both their professional and private lives. This is referred to in the guidance as “proximity to practice” which effectively means that “the closer any behaviour is to an individual's professional practice the more likely it is that the conduct might impact on or call into question the integrity of the individual or the wider trust in the profession - and therefore more likely the need for regulatory action”.

Thus, where a complaint is made about a regulated person, but their professional status has no relevance to the incident itself, then the complaint is unlikely to be investigated. An example of

USER By Duncan Finlyson

this would be where inappropriate sexualised comments or gestures were made to the complainant at a family party by someone who just happened to be a solicitor but there was no real link to their professional practice. On the other hand, a complaint might be so serious that even if it arises from a private setting the SRA would consider bringing proceedings, for example because the behaviour complained of offends public trust and confidence, irrespective of context.

This is an approach that was endorsed in the Beckwith case where the court concluded at paragraph 58 that regulators must exercise their powers proportionately, and that cases must be conducted with proper regard to the need for those subject to such proceedings to be able to defend themselves without incurring excessive costs. The clear conclusion was that for events in a solicitor’s private life to be subject to disciplinary measures there must be a clear link to the professional regulations which, in this case, had not been so.

COLP reporting So, where does this leave the hard-pressed COLP in attempting to judge if there has been a serious breach of the SRA’s regulations at a work event, or even instead at a social event involving one or more of their colleagues? So open is this latest guidance it is difficult to say, but it is clear that the SRA will continue to take the view that situations that are likely to be judged to be distasteful or involving poor behaviour rather than those resulting in a criminal charge should be seen to potentially amount to such.

The SRA’s Guidance on Sexual Misconduct can be found at www.sra.org.uk/solicitors/ guidance/sexual-misconduct/

Duncan Finlyson is a director of Infolegal, which provides guidance on this issue, including templates and policies tailored for sole practitioner users. For more information go to www.infolegal.co.uk.

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