Misconduct: Arm around the shoulder might not be a regulatory matter
The Solicitors Regulation Authority (SRA) has today made clear that it can and will take action over sexual misconduct which happens entirely outside of a solicitor’s practice.
But in issuing detailed new guidance on the issue of sexual misconduct, the regulator said there were boundaries to its reach and that less serious activity – such as comments about a person’s appearance – that took place in a private setting would not lead to action, even if it would were it to happen at work.
The SRA said the number of complaints received about sexual misconduct at law firms has risen significantly since it issued a warning notice about non-disclosure agreements in March 2018.
There have since been 251 reports relating to potential sexual misconduct, compared to just 30 in the preceding five years, with 117 on-going investigations.
The regulator noted that “unfortunately [unwanted sexual attention] can be an all-too-common occurrence in the workplace. It usually involves sexualised comments which the perpetrator often seeks to justify – and might genuinely regard – as ‘flirting’ or ‘banter’ or even ‘complimentary’.”
The guidance said that not all sexual behaviour raised a regulatory issue – for example, consensual sexual relationships between colleagues would not, without more, be investigated or sanctioned.
“However, 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.”
It acknowledged that sometimes the line between an individual’s private and professional life “can begin to get blurred, making judgments about whether any conduct constitutes a regulatory matter more difficult”.
The issue came to the forefront in 2020 in the case of former Freshfields partner Ryan Beckwith, who won his appeal against a decision that he had breached the SRA code of conduct by having drunken sex with a junior lawyer at the firm.
Though his conduct was “inappropriate”, the High Court identified as crucial the fact the Solicitors Disciplinary Tribunal did not find the solicitor’s conduct to be an abuse of a position of seniority or authority.
The guidance said 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 was that it could impact their integrity or trust in the profession, making it a regulatory matter.
The SRA said some sexual misconduct allegations arising in a private setting might still be so serious that they damaged public confidence in the profession and required regulatory action, such as criminal convictions as well as “serious non-consensual sexual touching even where no criminal proceedings are planned, current or concluded”.
However, it went on: “Sometimes a complaint is received by us about a regulated person but their professional status has no relevance to the incident itself.
“A complainant might, for example, say that a family friend who is a solicitor made inappropriate sexualised comments or gestures to her at a family party. If the friend just happens to be a solicitor there would be no real link to professional practice and the complaint unlikely to be investigated.”
In these less serious cases, the SRA would look to identify the extent to which the complaint related to professional practice.
“The reason for this is that some matters which would not merit regulatory action in a private setting would do so if they impacted on workplace relationships or took place in a work environment.
“For example, commenting on someone’s personal appearance in private life is likely to be acceptable but might not be appropriate in the office.
“Or two mutually consenting people who happen to be work colleagues, engaging in flirtatious conversation at a bar one evening is completely different to a training principal making sexually suggestive comments to a trainee in the office.”
The guidance said a sexual motivation behind, for example, unwanted comments or touching, would make the conduct more serious.
“For example, 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 us to take regulatory action.
“However, if the touching were intentionally on the bottom or breast it would obviously be more sexualised and therefore more serious.”
Factors going to gravity included “suggesting or demanding that junior staff wear certain attire, such as high heels, fewer items of clothing or more revealing clothing or make up”, intentionally plying someone with alcohol, using internships and traineeships, future work or access to clients as inducements, “physically cornering or obstructing a complainant so as to prevent exit or escape”, and giving sexualised gifts, such as sex toys.
The SRA recognised that consent could be a relevant factor, but that assessing it was “very complex and can be hard to determine”.
“It 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 stressed too that it expected firms “to foster a culture of zero tolerance of sexual misconduct”, so that staff felt that they could speak up freely and report matters to their firm and to the regulator.
This was in line with guidance on the workplace environment it issued earlier this year.
SRA chief executive Paul Philip said: ‘We take reports of sexual misconduct seriously. These can be sensitive and difficult issues and we want to be clear about our expectations, not least for firms, as people often come to us because they are dissatisfied with the way their firm has dealt with their concerns.”
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