A fresh wind of hope at the SDT : SRA Lawyer

The recent High Court decision in Ryan Beckwith v Solicitors Regulation Authority [27^th November 2020] has blown away the cobwebs at the Solicitors Disciplinary Tribunal and may well have heralded a change of approach which would be welcomed across the profession.

Practitioners at the SDT have recently faced a difficult period, as we wrestle with a perfect storm, consisting of the new burden of proof which was announced on 1^st April 2019, despite the 98% success rate for prosecutions between 2015-16[1], the enthusiasm for costs order (unlike many other regulators which means that those who are prosecuted often can not find the resources to pay their own defence costs) and the latest listing protocol which seems to pay little regard to the availability of defence legal representatives when listing cases[2]. It is not a coincidence that an increasing number of clients are electing either to not contest allegations that they deny or chose to represent themselves, often against experienced counsel instructed by the SRA.

This case concerned a partner in the firm of Freshfields Bruckhause Deringer who faced charges of inappropriate sexual activity with a junior member of staff. The Tribunal concluded that he had not acted in abuse of his position of seniority or authority but his actions were in breach of Principle 2 of the 2011 Principles, the obligation to act with integrity.√جª¬ø 

The Tribunal decided that the appropriate sanction was a fine of £35,000 and that the Appellant should pay the SRA’s costs of the proceedings in the amount of £200,000 ( approximately 60% of the total costs claimed by the SRA, which had been £343,957.08).√جª¬ø

In, what has been seen as an important change of direction, the High Court rowed back from the prevailing view that the private life of a solicitor is as important as his or her professional life in the consideration of ‘misconduct’.√جª¬ø 

The High Court considered the recent line of cases on lack of integrity, following the recent judgment in Solicitors Regulation Authority v Wingate [2018] 1 WLR 3969 where Rupert Jackson LJ summarised the position, which is that integrity is a broader concept than honesty, it is also a ‘more nebulous concept and less easy to define, but in professional codes of conduct it is a useful shorthand to express higher standards which society expects from professional persons and which the profession expert from their own members.√جª¬ø 

Although it is possible to give examples of what a professional person should not do, this decision made it clear that the proper approach is to undertake a case by case assessment by Tribunals, based on the Handbook [the 2011 Code of Conduct].  Here, the Court concluded that the Tribunal’s final statement that the Appellant had ‘fallen below accepted standards’ was ‘not coherent’ as these obligations were not properly derived from the Handbook and went on to decide that although what the Appellant did affected his own reputation, his conduct was not a breach of Principle 6 ‘You must..behave in a way that maintains the trust the public places in you and the provision of legal services’.√جª¬ø 

The extend of the extent of the reach of the Handbook over a solicitor’s private life was further considered and dealt with in this way at para 54:

‘There can be no hard and fast rule either that regulation under the Handbook may never be directed to the regulated person’s private life, or that any/every aspect of her private life is liable to scrutiny. But 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’√جª¬ø

This decision is also highly important in respect of the attitude to the costs application. The court concluded that regulators must exercise their regulatory powers proportionately. Since the SRA will not be required to pay defence costs when the cases are successfully defended, it must conduct its cases with ‘proper regard to the need to permit persons who face regulatory complaints to defend themselves without excessive cost’.√جª¬ø√جª¬ø