SRA prosecution: at what price?

I suspect few lawyers are unaware of the furore surrounding the completion of non-disclosure agreements (NDAs) relating to allegations of sexual misconduct in 1998 on behalf of Harvey Weinstein. 

Not only were the agreements the subject of evidence given before the Women and Equalities Committee (WEC) in 2018, but they have also been the subject of extensive media discussions and have led to calls for tighter regulation of NDAs more generally.

Paul Philip, chief executive of the Solicitors Regulation Authority (SRA), was called to give evidence to the WEC in April 2018 and the regulatory response of the SRA was specifically criticised by the WEC in its final report in July 2018. 

The evidence given by Philip on behalf of the SRA was to the effect that new information had come to light, enabling it to open a case into the conduct of Mark Mansell, the Allen & Overy (A&O) employment partner who had given evidence before the WEC.

The SRA had spoken to the A&O compliance officer in 2017 but had decided to await further developments before taking further action. According to its report, the WEC was not impressed by that approach.

Solicitor Z

Fast forward to 14 January 2021, when the Solicitors Disciplinary Tribunal (SDT) published its anonymised reasons for not proceeding to a substantive hearing in the case of ‘solicitor Z.

In the event that anyone was fooled by the anonymisation of the findings, the SRA’s press release of the same date mentioned Mansell by name – as did a sizable proportion of the national press (with some publications suggesting he had ‘escaped’ justice).

In fairness, the factual background set out in the findings is sufficiently detailed to render anonymisation pretty pointless.

The findings are an interesting read on many levels. The reliance on principles derived from the criminal case of Galbraith in the context of an application for summary disposal, is of marginal procedural interest.

The slightly contradictory approach to the potential impact of witness evidence across the various applications is worth reading for the minor eye roll; and could have been entertaining if deconstructed on appeal. 

It was interesting to note that the SDT did not find that the age of the allegations; or the unreliability of recall after such a period; or the loss of the file belonging to the solicitors of Ms Perkins (one of the women who signed an NDA); or the proceedings before the WEC and the attendant publicity would give rise to any issues which offended its conscience. 

The SDT found that it was more than capable of applying principle to fact; and that any difficulty associated with recreating the applicable standards as at 1998 did not approach the threshold of rendering a trial unfair.

Although recognising the applicability of Wingate, the SDT did not comment on how the definition of integrity in Wingate would naturally have required an analysis of accepted professional morality at the time, nor how that could have been proved. 

A different world

I found myself wondering how many of us have copies of the guide to solicitors’ professional conduct covering 1998 to hand. I remember how shocked I was upon inheriting and reading parts of a copy of the guide from 1996 – the world was rather different in those days. 

I wondered whether it would have been appropriate if the case had gone ahead on the basis that only those who had been in practice for 10 years as at 1998 had been considered eligible to sit in judgement of professional conduct dating from that time.

As facetious as that sounds, it should be of concern that those sitting in the SDT genuinely understood what constituted misconduct at that time. 

The lack of any mention of ‘conduct unbefitting a solicitor’ as a threshold requirement for misconduct proceedings prior to the introduction of the 2007 code of conduct is startling and, perhaps, demonstrates that it would not have been quite so easy to apply the standards of the time.  

I shall be interested to revisit the commentary in textbooks from that time as to the treatment of represented third parties. 

A disturbing story

All of this idle wondering came to a screeching halt when I got to the application which succeeded.  Despite the emphasis of the news reports following the publication, slogging through to the appendices to the judgment suggests that the real story is more disturbing and more immediate. 

Until I looked at the findings in detail, I found this saga one of disappointment but not surprise. Everyone focused on how wrong it was that Ms Perkins ended up signing an agreement which she believed prevented her from reporting crimes to the police and consulting doctors about her experience.

I was surprised that her evidence to the WEC reportedly suggested that her lawyer was clearly and obviously out of their depth, being just two years PQE at the time.

Yet there is no suggestion made, as far as I’m aware, that the SRA should pursue her lawyers for not acting in her best interests, not supervising properly or accepting instructions which they were not qualified to fulfil, based on her evidence. 

No doubt there are reasons for that which have not been made public; indeed, it seems from the findings that the SRA did not prosecute because the solicitors did not think that the agreement was improper – an oddity in itself. 

Upon considering the events of the past few weeks, I have moved beyond disappointment and into genuine alarm. The rabid insistence on guilt by association directed at Mark Mansell is staggering and of questionable justification, based on what information is in the public domain.

The apparent need to take action, in order to be seen to be taking action, is worrying; and the fact that the SRA opposed a stay despite receiving evidence from its own medical experts that proceeding with allegations dating back 22 years would put the life of the respondent at ‘significant’ risk, is abhorrent. 

The SDT found that the respondent’s article 2 rights (the right to life) were engaged. That is not the usual province of the SDT – disciplinary proceedings are rarely matters of life and death.

That the SDT appears to have argued in favour of risking the death of a respondent is inconceivable and calls for far more of an explanation than we have been given.

At the risk of being melodramatic, I think most solicitors would object to their practicing certificate fees being used to pursue a course of conduct which puts someone’s life at risk.

More alarmingly, the findings were dated 2 July 2020 but not published until 14 January 2021. They were met with a swell of condemnation from the press precisely because the proceedings were stayed.

For its part, having had seven months to reflect on the value of human life amid a global pandemic, the SRA issued its press release on 14 January stating that “the SRA regards the public interest in the determination of disciplinary allegations to be very strong” as a justification for seeking to proceed, despite a “significant” risk to life accepted by its own expert.

The SRA statement suggests that both Mansell and the SRA had challenged the SDT’s findings, but each had withdrawn their challenges by the time of the press release.

I truly hope that I am reading the SRA’s press release wrongly and that it did not prefer the pursuit of allegations from 1998 to the preservation of life. 
 

Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com