Does the SRA's new guidance on sexual misconduct seek to reach even further into solicitors' private lives?

"man walking in shadow

Since 2018 the SRA has received 251 reports relating to allegations of potential sexual misconduct, a 737% increase on the 30 reports received in the preceding five years. This trend followed the global Me-Too movement and, as with many other industries, solicitors firms and the SRA were ill-equipped to deal with the sudden onslaught of this "new" type of complaint.

This is not a trend which looks likely to plateau any time soon with increased efforts by firms and the SRA to combat sexual misconduct in the profession. The SRA currently has 117 active investigations concerning such allegations and after years of confusion its new guidance (published on 1 September 2022) seeks to clarify how it will approach reports of this nature. 

One of the most challenging issues for the profession over the last 5 years has been navigating when firms and the SRA should become involved, particularly in relation to matters which extend into a solicitor's personal life. The new guidance aims (amongst other things) to "identify the boundary between an individual's behaviour in their private and professional life, where they might overlap and why the distinction is important."

Such clarity is clearly something which the profession needs and while the guidance goes someway to providing direction in relation to some aspects of sexual misconduct matters, it fails to deal with many important issues and raises further questions about what exactly the role of the SRA and firms should be in these cases. 

The SRA's general position is that in upholding the principles in the Code it can intrude into a solicitor's private life and it considers the judgment in the Beckwith case (Ryan Beckwith v SRA [2020 EWHC 3231 (Admin)] to endorse this approach. Specifically the SRA considers that "the closer any behaviour or alleged wrongdoing touches realistically upon an 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". 

It is arguable that the SRA is giving itself slightly more discretion on this point than the judgment in Beckwith seems to have intended when it stated that "Principle 2 or Principle 6 may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook". In other words, the conduct must demonstrably touch upon the person's practise of the profession or the standing of the profession by refence to a particular rule of conduct, while the wording of the SRA guidance suggests it will apply a more subjective test. 

In addition to addressing misconduct cases which have some overlap between the professional and personal (for example, clarifying that the working relationship remains the origin and context for an allegation of sexual misconduct even if the misconduct takes place in a non-workplace environment i.e. moving onto another location such as a club after a work event), the SRA also states that there may be some occasions where it will investigate allegations of sexual misconduct which are totally removed from the legal practice. The obvious example here would be SRA involvement following a solicitor being convicted of a sexual offence. However, the SRA guidance goes even further stating that the absence of a criminal conviction, or even an acquittal, may still give rise to SRA intervention. 

The guidance refers to a hypothetical situation where the SRA receives a complaint that a family friend who is a solicitor has made inappropriate sexualised comments or gestures to the complainant at a family party, and states that the SRA is unlikely to investigate such an allegation but that "some complaints are so serious that even if they arose from a private setting they will consider bringing proceedings". This therefore suggests that there could be a situation where the SRA will investigate an allegation of a serious offence, such as rape, in circumstances were the incident is totally removed from legal practice and where the matter is not being pursued by the police or has not been reported. 
Similarly, even if there is a link to the legal profession (for example an allegation being made to a firm of serious sexual misconduct in the workplace) is it right that a firm (or the SRA) should be expected to investigate an allegation of such a serious nature where there is no police involvement? The SRA guidance seeks to deal with issues such as consent, vulnerability, intoxication and abuse of position, these are all complex and nuanced issues which arise in many criminal prosecutions of sexual offences and for understandable reasons the SRA's guidance on them is vague. It is therefore extremely difficult to see how a firm with no expertise in criminal investigations (or indeed the SRA) would be able to effectively deal with an investigation into such an allegation. 

It is also hard to see how a firm can conduct an objective investigation in cases such as these where the investigators are likely to know the parties involved. For example, in cases the writers have been involved in comments such as "based on my personal experience I'm sure that solicitor didn’t mean anything by it" or "I have always found that solicitor difficult to deal with, they are probably exaggerating" have been made. This raises obvious concerns about firms investigating their own partners or solicitors.   
While the new guidance provides some helpful direction which will be welcomed by firms who have been struggling to navigate the increased number of sexual misconduct allegations and the difficult issues those allegations raise, many of the concerns surrounding the remit of firms and the SRA in relation to these cases remain unanswered. However, what is abundantly clear from the guidance is the overlap between criminal and regulatory issues and the first step for any individual or firm involved in such a matter is to recognise that specialist advice should be sought in relation to those issues.

This article was co-written by Ian Ryan and Jenifer Harper


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