Weighing up a lawyer's public shame against open justice

We as journalists may espouse the unbreakable principle of open justice, but let’s not pretend decisions over anonymity are easy.

The Solicitors Disciplinary Tribunal was faced with a dilemma in the case of Respondent AR, a law firm partner who admitted to sexually harassing a colleague on a night out and had agreed with the Solicitors Regulation Authority to serve a two-year suspension.

A medical expert, jointly instructed by the partner and the SRA, said there was a real risk to the individual’s life if he was named. The tribunal was told how there had been a serious incident very recently and it would be understandable if the tribunal felt distinctly uneasy about putting someone in grave danger by allowing his name to go public. If these were the potential consequences then anonymity had to be considered.

Open justice is of course a given in criminal cases but the potential for embarrassment and suffering is arguably greater in a regulatory case. Whereas 20 years ago this misconduct would be reported in the paper copy of the Gazette, now the story is accessible across the world and in much greater numbers online, direct to the inboxes of your peers and colleagues. Lawyers who represent people in this situation say the worldwide notoriety is traumatic and devastating for those put through it. Open justice comes with an enduring glare of public shaming, and we must be alive to the damage it can cause.

And yet in the case of Respondent AR, things were not so clear-cut. The all-male panel (and yes, when the victim of the sexual harassment is a junior female, that is worth pointing out) was split. One member dissented, saying the partner’s decision-making was not impaired and he had given instructions to his lawyers. He had not taken up all the treatment options available and was in any case under the ongoing and regular care of his doctors. Help was easily accessible if he was named.

The dissenter (the only lay member of the panel) made the important point that naming the partner would allow for other complainants who may also have been impacted by misconduct from the same person to come forward and report it to the SRA. It was not mentioned by the tribunal, but there is a safeguarding issue as well: in less than two years the partner will be free to return to the profession: do his future colleagues not have a right to know who they are working with?

There has been a creeping onset of anonymity applications from lawyers appearing before tribunals. These are often made with no notice to the media who would be reporting on the case and would want to make representations themselves. This has been exacerbated by the SDT’s decision – not subject to any public consultation – to conduct every hearing online, as a lingering hangover from the Covid lockdown. Pre-pandemic, reporters would attend the tribunal in person and ask on occasion for individuals to be named when they heard this was happening. Now hearings – let alone details about the allegations – are sometimes not announced until the last moment and decisions about anonymity taken without any opposing view. The SRA is all too often indifferent to open justice, or in this case actively campaigns against it.

Could this encourage others to make similar applications? Pay for a good lawyer (and remember, many can’t afford to), secure an expert report, prey on the nerves of a fearful tribunal and they may keep their name out of search engines. The danger of these decisions is that anonymity starts to became the default, rather than exceptional, position.