Solicitors and Their Private Lives

 

The High Court’s decision of 27 November 2020 in Ryan Beckwith v SRA [2020] EWHC 3231 (Admin), which the SRA has said it will not appeal, has at long last put down clear parameters about when solicitors’ private lives are their own and are no business of the regulator however “inappropriate” the behaviour may be thought. The SRA is no longer at liberty to simply set a standard by reference to what it considers right and wrong.

It also provided much needed help on the enormity and opacity of costs claims solicitors face when defending themselves before SDT.

Both have been significant issues for a considerable time.

Beckwith is a significant decision and was in many respects a bad outcome for the SRA which had hitherto prosecuted misconduct cases based on material arising from activity outside practice by reference to what it considered acceptable or appropriate behaviour. It is sometimes dogmatic in its approach, even if unwitting, and unwilling or unable to separate out the truly private where it is not right to enquire. The High Court said it cannot continue to do this, and we can all be grateful that Mr Beckwith had the resources to challenge the SRA’s approach to such cases.

The SRA is having to review all its current cases in light of Beckwith, and it has implications for all future cases as well. This is to be welcomed.

This is not to say that all activity categorised as “private” is no longer caught by Standards and Regulations. That would be going too far, but solicitors’ sex and private lives should remain their own private business except where the activity is non-consensual, or amounts to harassment or an abuse of position, or involves conduct which criminal in nature or which brings genuine reputational damage to the profession or the administration of justice. Higher standards of behaviour are expected, but like the society we serve we don’t have to be paragons of virtue.

It is worth remembering what the SDT case was all about. In many ways it wasn’t unusual or particularly remarkable. Ryan Beckwith had a “sexual encounter” with an associate solicitor of the firm of which he was a partner during the evening of 1 and 2 July 2016. They had both been part of a group drinking in a pub near his firm’s London office. It was accepted that he was in a position of seniority over the associate. Both had been drinking heavily before the encounter took place. It seems that the complaint was made to the SRA in August 2017, following which the SRA made an application to the SDT.

It alleged that the sexual encounter constituted a breach of Principles 2 and 6 of the SRA Principles 2011 for a number of reasons, which in summary were that Mr Beckwith was in a position of seniority over the associate, that he knew or ought to have known that his conduct had not been invited and was unwelcome, that he knew or ought to have known the associate was very drunk and vulnerable, and that his conduct was an abuse of his position of seniority.

SDT made a number of crucial findings of fact having heard the evidence. There is a long list of them annexed to the Judgment, but it found that a sexual encounter took place between two persons who were both heavily intoxicated, that Mr Beckwith was in a position of seniority, but rejected the contention that the associate was vulnerable. It rejected the allegation that Mr Beckwith had acted in abuse of his position of seniority or authority, and found there was no issue over consent. It instead found that by engaging in sexual activity with the associate he had acted “inappropriately”. It went on to find he had thereby breached his obligation to act with integrity and to behave in a way that maintains the trust the public places in solicitors and in the provision of legal services.

Principle 2 of the 2011 Principles required solicitors to act with integrity. It has been replaced by Principle 5 of the 2019 Principles but the obligation is the same. Public trust obligations are also broadly the same.

“Integrity” has never been particularly easy to work with. It is a broader concept thanhonesty and more nebulous, and therefore less easy to define. Putting it simplistically, it’s something you know when you see it. It requires an adherence to moral and ethical principles of the solicitors’ profession. The question what are these, and who sets them? Until now SRA was free to do this in any given set of circumstances and SDT was similarly free to do so, and assess what the solicitor did against them. This is no longer possible. SRA and SDT cannot set its own freestanding standards, and this is to be welcomed. Included in the working understanding of “integrity” is that solicitors are not expected to be “paragons of virtue”. This has tended to be forgotten, until now. It has permitted the regulator to be overly judgmental.

Beckwith makes clear that a solicitor may well behave “inappropriately” or even disgracefully and may well damage his own personal reputation. It does not however follow that in doing so he acted without integrity or harmed the standing of the profession generally. Until now, SRA tended to equate inappropriate behaviour with misconduct, and has published a number of guides setting out its expected standards. The Court ruled such guides play second fiddle to legislation and to the content of the Handbook properly defined and construed. This, the court said, is how conduct is to be assessed. The court also made clear that it is of no help in making an assessment to introduce comparisons with other regulated professionals. There needs to be a clear link between the conduct identified and practice as a solicitor, for this is why we are regulated.

This approach will apply to a whole range of conduct which has no obvious connection to practice as a solicitor. Private sexual conduct is plainly included, but so may conduct involving drugs or alcohol. It is not in my view misconduct to be an alcoholic, but I am aware of at least one instance in which the SRA has advanced a failure to take steps to address alcoholism as part of a prosecution, suggesting it supports a lack of integrity. Solicitors shouldn’t be alcoholics and if they are, they should take effective steps to address it. Really?

The most welcome thrust of Beckwith is that SRA is no longer free to sets its own free standing standards; it must do so clearly by reference to the Handbook and the obligations in it as properly defined. This will at last bring a degree of certainty and remove the ever present moral judgment that punctuates prosecutions that touch on private lives. The SRA should not require solicitors to be paragons of virtue in their private lives – we are entitled to have one!

Beckwith has also provided much needed help on the vexed question of prosecution costs. Despite impressions to the contrary Beckwith was factually straightforward as it considered a one off sexual encounter which did not involve police as there was no criminal conduct. Further, much of the factual background was admitted. SRA only had to try and prove that the largely admitted facts constituted a breach of Principles 2 and 6, and yet ran up massive costs of £343,957. Mr Beckwith was ordered to pay £200,000, and his appeal against this order succeeded.

The court said the claim was “alarming”. The SRA was reminded that regulators pursue disciplinary proceedings in the public interest, and the costs they incur should reflect that responsibility. They must exercise their regulatory powers proportionately, and since the SRA will not usually be ordered to pay costs when regulatory proceedings are successfully defended, it must conduct its cases with proper regard to the need to permit those who face prosecutions to defend themselves without excessive cost. The court said this was part of any regulator’s responsibilities in the public interest.

The increasing size of SRA costs in regulatory proceedings has been a cause for serious concern for quite some time. Transparency is also important, so that those prosecuted can see the work done and who did it.

It is to be hoped the SRA will take this on board. SDT has appeared to be far more testing of costs claims and this is to be welcomed as well. Solicitors should not fear the costs of properly defending or explaining themselves as a basis for not doing so.

Comments

No comments so far - why not be the first?

@
http://
(HTML markup not supported)
The SRA has at last issued a brief statement on this very significant issue. I suspect the virus has massively impacted on the Authority and I know many employees are working from home. It is not business as usual and of course, it is not
The article below was printed in the Law Society Gazette and prompted quite a discussion! In September 2018 I described how the SRA were dealing with solicitors convicted of drink driving, and the need for a more discerning and informed
A much simpler set of Accounts Rules will come into force in November 2019, and will for the first time give firms, managers and sole practitioners considerable flexibility on how they go about complying and dealing with client money.
The Leigh Day appeal reaffirmed some basic principles for appeals of SRA judgements
The Solicitors Disciplinary Tribunal regularly deals with applications brought by the SRA following the conclusion of criminal proceedings against solicitors. The conviction sometimes forms the entire basis of the proceedings, but otherwise
In late 2013 Aidan Loy committed three drink driving offences for which he was sentenced in December 2013 and February 2014. The second two offences were dealt with together, and as they were all committed in a very short period of time with
The recently published judgment in Forz Khan v Bar Standards Board provides insight into the professional consequences of careless talk and use of LinkedIn. It comes hot on the heels of an SDT judgment in Deborah Daniels who was prosecuted by
LawCare released striking statistics at the beginning of 2018 which show the number of lawyers calling for help is increasing. Lawyers' mental and emotional health has been slowly creeping up the agenda and even the SRA is recognising
The Solicitors Disciplinary Tribunal is now consulting on whether to reduce the standard of proof in disciplinary cases from a criminal to a civil one.
Solicitors have been warned to watch their language and it is highly likely that other regulators will adopt a similar approach.
Solicitors and firms are required to report to the SRA promptly, serious misconduct but what constitutes serious misconduct
The SRA and other regulators frequently bring disciplinary proceedings based on "a lack of integrity." But what is integrity?
In September 2017 Majid Mahmood was fined £25,000 and was the subject of a deferred period of suspension as a result of wholly inappropriate posts on his Facebook Page
On the 21 September 2017 the SRA published a warning notice to solicitors, firms and anyone else it regulates who provide tax planning services
There is a procedure in the Solicitors Disciplinary Tribunal which allows the parties to apply for disciplinary proceedings to be concluded by a Statement of Agreed Facts and Outcome.
Michael Cremin was a man who presented himself to the outside world as a Lawyer and Advocate. He had a professional profile on the web site of Cotswold Barristers Chambers, along with his photograph. Cremin was neither.
This has long been a guiding principle. Solicitors are guardians and trustees of client money and are expected to exercise proper stewardship over it. Everything that we do with client money has to in accordance with the SRA Accounts Rules
The Solicitors Disciplinary Tribunal has confirmed that it will consult on where to set the standard of proof when determining allegations of misconduct against solicitors. The Bar Standards Board is also looking at a new civil standard of
In proceedings before the Solicitors Disciplinary Tribunal it has for very many years been a requirement that a solicitor should clearly know the case that he or she has to meet. In other words, there is an obligation on the SRA to properly
The need to deal carefully, thoroughly and openly with the SRA during investigations cannot be overstated. There is an explicit professional obligation to cooperate with the Authority and to provide it with whatever information it might need
Web site powered by CommsBox™