How private is a private life?

Many of us will have been happy to see the judgment in Beckwith v SRA that principles 2 and 6 of the Solicitors Regulation Authority (SRA) Handbook 2011 (the equivalent of principles 2 and 5 of the SRA Standards and Regulations 2019 (STARs)) don’t have “unfettered application across all aspects of a solicitor's private life”. 

Putting aside the specific facts of the case and considering matters from the level of principle, the outcome is a victory of sorts for those who have viewed the SRA’s apparently ever-expanding reach with alarm. 

But what does this mean in practice? What can we glean from the High Court’s approach in terms of how the SRA and the profession should approach the question of regulatory reach into private life; and how far should regulation follow what might most conveniently be termed ‘social mores’?

Back to basics

The High Court’s approach in Beckwith was focused on the need for the approach of both the SRA and the Solicitors Disciplinary Tribunal (SDT) to be grounded in legitimate sources, particularly section 31 of the Solicitors Act 1974 and the SRA handbook. 

Crucially, its approach which took in drawing the line between private conduct within and outside the remit of the regulator was a qualitative one, rather than one based on gravity alone.

In other words, some types of conduct by their nature fall within the ambit of the SRA because they are linked to the substance of the handbook, while others do not. 

The court said: “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.” 

Thus, the contents of the obligation of integrity “must be drawn from and informed by appropriate construction of the contents of the handbook”, while for principle 6, a qualitative distinction has to be made “between conduct that does or may tend to undermine public trust in the solicitor's profession and conduct that would be generally regarded as wrong, inappropriate or even for the person concerned, disgraceful… where that line lies must depend on a proper understanding of the standards contained in the handbook”.

It seems that the most basic point, that there must be a line drawn qualitatively between private conduct within the reach of the regulator and that outside, must stand.

The judgment is clear that even though the notes and application provisions in the 2011 handbook purported to apply principles 1, 2 and 6 to all conduct (not just professional conduct), the principles did not have “unfettered application”.

In other words, whatever the STARs say about the scope of the principles, they only apply to private conduct insofar as it realistically touches on “standards of behaviour which are set out in or necessarily implicit from” the STARs. 

That said, however much we may welcome the High Court’s approach as a matter of principle, by specifically limiting comments “to the circumstances of the Appellant's case”, it has not offered conclusive clarity on how the SRA, solicitors and firms might go about assessing whether conduct is “qualitatively relevant” to the STARs for the purposes either of regulatory action (for the SRA) or reporting/self-reporting.

Much remains to be settled. Until the contours of this new approach have been more clearly defined, it will be important for firms to be able to demonstrate their decision making and proper reflection on their regulatory obligations.

Time for a cultural shift?

While recognising Beckwith as a re-focusing of the regulatory lens, we should not lose sight of the facts and issues underlying the case as a whole; and the questions raised around our professional and regulatory culture.

The court said it considered that having qualitative limits on the regulator’s remit gave sufficient legal certainty and ensured a fair balance was struck between respect for private life and the public interest.

But it warned: “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.” 

When discussing public outcry, the court may well have been making reference to the #MeToo campaign, in the wake of which the SRA made it clear it would take allegations of sexual misconduct very seriously, whether occurring inside or outside the workplace. 

However, it seems to me that the High Court’s warning is somewhat misplaced. Popular outcry is not always proof that certain conduct should generally be considered wrong, let alone within a regulator’s remit.

But in other cases, such as with the #MeToo movement, it is a means by which problematic and frankly inexcusable behaviour, that has become part of the status quo, is called to account. 

The legal profession should not be immune from this calling to account, nor should we want to be. While the SRA’s allegations against Beckwith were widely drafted, and arguably went beyond what might rightly be considered sexual misconduct, the fact the SDT had to make a determination on whether there had been an abuse of authority (an issue the court concluded would have brought it within the SRA’s remit) surely means it was right that the matter as a whole be considered by SDT.

That said, as is clear from the Tribunal’s judgment, these cases pose particular difficulties. By their very nature, allegations of sexual misconduct often involve events where there are no independent witnesses. 

In Beckwith, the SDT found both the respondent and complainant to be generally credible. Where it was able to make a determination between the differing accounts, it was often relying on the evidence of a third party with whom the complainant had discussed the events.

There will not always be such a third party and (especially given the move to the civil standard of proof) the SDT may find itself making difficult judgement calls which have career-ending consequences.

It is essential that we collectively try to build a professional culture that, as far as possible, does not give rise to such complaints. Firms must have robust policies and procedures and ensure these are known and understood; but a wider issue is the culture of alcohol in the profession. 

This was clearly a factor in Beckwith, without which the events – which had serious consequences for both complainant and Beckwith, even leaving the regulatory proceedings aside – may not have occurred.

The SRA arguably can and should have a role in working with firms to open discussions on these issues and encourage best practice, as part of its objective to build an independent, strong, diverse and effective legal profession – even if it falls outside of its prosecutorial remit.

Beckwith has, over time, become something of a lightning rod for polarising debate in the profession. A

s the dust settles and its implications for those regulated by the SRA become clear, we should be relieved at the exercise of judicial common sense; and take a deep breath and steel ourselves for the continued challenge of bringing about culture change within our profession.
 

Gideon Habel is a partner and head of Leigh Day’s regulatory and disciplinary team leighday.co.uk

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