Men behaving badly

Friday 27 November 2020 was not a good day for the Solicitors Regulation Authority. The High Court overturned a Solicitors Disciplinary Tribunal judgment that Ryan Beckwith, a former Freshfields Bruckhaus Deringer partner, had breached SRA principles 2 and 6.

Following a day of team celebrations in 2016, Beckwith, who resigned from the firm when the SDT gave its initial judgment, spent the night with a junior colleague in circumstances that she (known as ‘person A’) found deeply distressing, the tribunal heard.

But on the SDT’s finding on principle 2 – integrity – the High Court said: ‘The tribunal’s final statement that the appellant [Beckwith] had “fallen below accepted standards” is not coherent.’

And on principle 6 – the duty to act in a way that ‘encourages equality, diversity and inclusion’ – the High Court noted: ‘Seriously abusive conduct by one member of the profession against another, particularly by a more senior against a more junior member of the profession is clearly capable of damaging public trust in the provision of professional services… the facts as found and assessed by the tribunal are not capable of supporting the conclusion that the appellant acted in breach of principle 6.’

The High Court warned that ‘regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit’.

For good measure, the court described the SRA’s costs as ‘alarming’. The amount, nearly £344,000, the Gazette’s report on the judgment noted, came to £2 for every solicitor in England and Wales. These were high stakes for the SRA.

The response

The response to the judgment seemed to signal a major setback for the #MeToo movement in the legal profession, which has gained momentum since 2017. And #MeToo is especially relevant here because every case of this type that the SRA has brought to the SDT has involved a woman making an allegation of inappropriate behaviour, harassment or assault against a male solicitor.

The Gazette spoke to Fiona (not her real name) who left a leading international firm in 2015. She made a claim for sexual harassment, which the firm settled; but that settlement was covered by what she describes as a draconian non-disclosure agreement (NDA). ‘High-profile trials are useful as they serve as a warning to men who thought they could make harassment and assault problems disappear,’ she now says. ‘The Beckwith trial got people talking in my [current] firm, including partners who wouldn’t normally discuss this issue openly, which is great.’ 

Despite this, she says ‘the outcome of the case was extremely disappointing’. Alluding to the uncontested facts of the case, Fiona says the High Court’s judgment sent a message that when it comes to certain behaviour, male solicitors ‘were off the hook’, which would ‘no doubt have a chilling effect on any women thinking of lodging a complaint’.

Some experts agreed the ruling will have a wider application, extending to other professions too. Solicitor’s Handbook co-author Gregory Treverton-Jones QC told the Gazette that regulators should not ‘seek to hitch themselves to transient public bandwagons’, adding: ‘I’ve always believed that solicitors’ sex lives should remain their own private business.’

It is not just the Beckwith case that became messy and problematic. After frequent delays, the SDT dropped its case against Allen & Overy partner Mark Mansell, who had drafted an NDA involving film-maker Harvey Weinstein (who was convicted of rape and sexual assault in February 2020) on the grounds of Mansell’s ill health.

The SRA has also had chequered results with the cases it brought against Baker McKenzie’s former London managing partner Gary Senior and other former executives at the firm. In June last year, Senior was fined £55,000 for serious professional misconduct involving the sexual harassment of a junior colleague, including unwanted touching, but avoided being struck off. Former colleagues who had been involved in the firm’s response and investigation were cleared.

There have been more obvious ‘successes’ for the SRA. In November 2020, Samuel Charkham was fined £30,000 for behaviour to a colleague that included racial abuse and unwanted physical contact. The SDT found Charkham, whose conduct included making a Ku Klux Klan hat out of an envelope, ‘had shown no particular insight and had not sought seriously to address his shortcomings with regard to his treatment of women and those from another racial background to his own in an office environment’. He was not, however, thought to be a risk to the public, so a strike-off was avoided. Instead, a course of diversity training was recommended.

Away from the SDT, some very senior lawyer ‘scalps’ made the news following incidences of sexual harassment and assault, with departures from several elite international law firms. Now, it can at least be said that behaviour once overlooked or tolerated may end careers.

Broad view

In asking where the legal profession and its regulator now stand in their treatment of this issue, it is probably unhelpful to draw sweeping conclusions from the results of individual cases. Alleged incidences of harassment or assault are highly case-specific, and those involved do not consider themselves part of a culture war.

 The SRA itself certainly seems to be taking the Beckwith judgment in its stride. Recognising that cases where facts are contested are challenging, it has now built a specialist team that has the skills and experience to deal with sexual harassment cases and is dedicated to investigating and bringing prosecutions.

SRA chair Anna Bradley, moreover, has pointed to the ‘limited’ nature of the judgment, noting ‘the court’s confirmation that the public is entitled to expect that junior staff and members of the profession are treated with respect by more senior colleagues’.

Solicitors must not, the court emphasised, ‘take unfair advantage of others’, whether in a professional or personal capacity, she added.

Perhaps the most significant events in the Beckwith case, as Bradley noted, took place prior to the introduction of the SRA’s new Standards and Regulations. In cases following those changes, in effect from 25 November 2019, the SDT will test evidence to a civil, not a criminal, standard.

Changing attitudes

There is no doubt that, Beckwith notwithstanding, the SRA is acting in earnest and the growing awareness that cases that become public damage a firm’s reputation with its clients, staff and potential recruits is changing attitudes.

Catriona Watt, a partner at professional practices firm Fox & Partners, says: ‘There has certainly been an increase in the willingness of individuals to speak up and to feel that they are more likely to be supported if they do.’ Law firms, she says, ‘realise that they have internal and external stakeholders with an interest in how they deal with complaints, and this has translated into adapting and strengthening internal processes’.

Solicitors who advise law firms and complainants in sexual harassment cases observe that the SRA’s handling of such cases has changed since 2017, reflecting the new resources and expertise it has dedicated to complaints and self-reporting.

‘My perception is that while the team is very responsive, there seems to be a fairly lengthy time lag in getting these cases dealt with,’ Watt says. Although, she adds, this must take into account that the firm usually carries out its own internal investigation first, and the volume of documents and evidence involved. ‘Cases are rarely clear-cut,’ she stresses.

'In my experience there has certainly been an increase in the willingness of individuals to speak up and to feel that they are more likely to be supported if they do'

Catriona Watt, Fox & Partners

Paul Bennett, partner at professional regulation firm Bennett Briegal, recalls his own experiences: ‘In previous years, in [sexual harassment] cases in which I’ve been instructed, the SRA has acted slowly and taken intense interest in matters without evidential support.’

The result for law firms and those accused of impropriety, he reflects, ‘is uncertainty, confusion and occasionally anger’. Conversely, Bennett adds: ‘When I’ve acted for individuals reporting serious sexual assaults, the SRA has left the complainants with a feeling of dissatisfaction and of not being believed. That is unacceptable.’

He acknowledges there have been recent improvements, though: ‘In 2021, they are, in my experience, doing a much better job at the investigation phase of assessing the issues and the evidence. I’ve had cases concluded which I feared would run for years in the absence of evidence.’

Karen Jackson, a principal of didlaw, which specialises in discrimination cases, is critical of the sanctions in successful prosecutions by the SDT. ‘Think about how closely regulated we are in other areas,’ she says. ‘If, as a solicitor, you are caught taking a train without having paid for a ticket you can be struck off. So in a sexual harassment case, how can you pass the “fit and proper” test when you have fallen foul of [the SRA’s] mandatory rules?’

The use of fines by the Bar’s regulator has also come in for criticism for being too lenient (see p22). The Bar Tribunals & Adjudication Service (BTAS) suggests that penalties for sexual misconduct should start at a suspension of at least 12 months and finish at disbarment. ‘The Bar Standards Board have rightly come under the spotlight for weak outcomes in sexual harassment cases, particularly when senior professionals abuse their seniority with juniors for their gratification,’ Bennett observes.

NDAs

It is worth recalling that it was the illegal use of NDAs drawn up by solicitors that led to the SRA paying closer attention to sexual harassment cases. What emerged was that law firms were using NDAs to ‘gag’ complainants.

The Gazette has seen examples of these, including Fiona’s NDA, which required her to destroy all evidence of her harassment.

In March 2018, the SRA issued a warning notice on the use of NDAs to conceal conduct that was illegal, or which related to breaches of its rules and principles. NDAs were not inherently illegal, it noted, while adding that ‘we are concerned to ensure that NDAs are not used to prevent reporting to us, other regulators and law enforcement agencies or making disclosures which are protected by law’.

How, then, has the profession responded to the warning notice? Feedback here is mixed.

‘In the context of any allegation of sexual harassment it would now be extremely rare to see an NDA,’ Anna Birtwistle, employment partner at Farrer & Co, says.

Watt says that since the SRA notice, the NDAs she has seen have changed: ‘I’ve not seen a confidentiality clause without sufficient carve-outs for legal or regulatory proceedings or investigations, taking advice, blowing the whistle… or that could be considered inappropriate for a long time.’

Practice varies when it comes to historical errors made by firms. Some have checked past agreements and contacted the parties to amend them. In one case an investigation into sexual harassment complaints uncovered an earlier NDA covering an exit. Here the firm took advice and wrote to the individual, subsequently amending the terms of its settlement agreement to remove the NDA.

But Kingsley Napley partner Iain Miller is not confident that all firms have altered their approaches. ‘A number of firms have reviewed their precedents and ensured they are in line with the SRA’s most recent warning notice, and if not, have made changes,’ he says. ‘There are still likely to be firms who have not done so and therefore misuse of NDAs is still likely to occur.’

Three years on from the SRA’s warning notice, Fiona says her former firm has not contacted her seeking to amend its agreement.

Jackson says some law firms propose NDAs that explicitly recognise a claimant’s right to make a report to the SRA. But in one case she advised on, the firm tried to make a settlement payment contingent on there being no such report. After the settlement was signed, the firm sent Jackson’s client a ‘cease and desist’ letter. It told her client that evidence of discrimination the client had gathered while at the firm constituted a ‘data breach’.

‘On the face of it big firms have changed,’ Jackson says. ‘In reality, I’m not convinced.’

Is Jackson’s assessment fair? Birtwistle says many firms have moved on this issue. ‘I would observe that the major firms have got to a place where they have taken, what you might call, more general “remedial” steps to address culture through their policies and training. We are now operating in an environment where harassment forms one element of the law firm’s wider work on diversity and inclusion,’ she says.

That is reflected in the handling of complaints, Birtwistle adds: ‘Responding to an allegation in the past too often started and ended in an agreed exit – usually that of the complainant.’ She says that today ‘it is inconceivable that a law firm would fail to investigate a complaint and… it’s now highly unlikely that it would choose to undertake that investigation itself. Investigations are therefore being conducted in a far more objective, as well as comprehensive, manner than one saw in the past.’ Complainants are being ‘more sensitively handled as a result’, she says.

Some improvement

Julie Norris, partner at Kingsley Napley, also detects a change. ‘Firms have got better at responding to an allegation, as firms no longer simply see such matters as only an HR issue and are quicker to escalate such complaints to the firm’s COLP and/or general counsel, who can then consider the regulatory position and whether the matter needs to be reported to the SRA,’ she says. ‘Alongside this, firms are now realising sooner that allegations need to be carefully considered and appropriately handled, which may involve conducting an independent investigation.’

Still, ‘the SRA needs to be much clearer, and consistent, in this area’, says Bennett. ‘I have seen a positive improvement. These are difficult cases and they are getting better at them. But the elephant in the room is the… lack of specific guidance as to when they will leave it to firms to tackle and when the SRA will take matters forward.’

The response of some firms when reviewing their relevant policies has been to create rules on office relationships, including requirements to declare them to the firm. Crispin Passmore, former director of policy at the SRA, believes this misses the point. ‘The debate still seems to be about “what consenting adults do in private” or “intrusion into private lives”,’ he tells the Gazette. ‘That seems to me to reveal a complete ignorance about the types of case being bought by regulators.’

The public debate needs to be reframed, Passmore says: ‘We might start with something like seeking to build a consensus that there are two types of case that regulators might be interested in.’ The first, he says, is ‘sexual or similar type activity that is not consented to’. The second is ‘sexual or similar activity that appears to have consent, but may on closer examination of facts appear to be exploitative… That might allow us to agree that regulators aren’t interested in sexual activity that is consented to and equal, though employers may have policies on that’.

But there remains a fundamental problem underlying the debates around the legal profession’s response to allegations of sexual harassment and its regulatory response, Jackson says: ‘There are men out there who just don’t know how to behave towards women. And they have colleagues who never pick them up on that.’