Toeing the regulatory line

Many working in the law accept the regulator’s involvement in, and influence over, their professional lives, but are less understanding about intrusion into their personal lives.

However, it is vital to be alive to the fact that regulators can and do look at behaviour outside of professional practice.

In a case study on the Solicitors Regulation Authority (SRA) website (under the heading SRA Principle 2 - public trust and confidence), the SRA advises: “Behaviour within or outside practice which undermines public confidence damages not only any individual involved but also the ability of the legal profession as a whole to serve society.”

There are now seven mandatory principles that apply to all who are regulated by the SRA (with some nuances for those practising overseas), which the SRA describes as  the “the fundamental tenets of ethical  behaviour”. They direct that regulated  individuals act:

In a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.

In a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.

• With independence.
• With honesty.
• With integrity.
• In a way that encourages equality, diversity and inclusion.
• In the best interests of each client.

The SRA’s enforcement strategy makes clear that the principles “apply at all times and in all contexts … both in and outside of practice (as the context permits)”. The regulator’s published line is that “the closer any behaviour is to professional activities, or a reflection of how a solicitor might behave in a professional context, the more seriously we are likely to view it”.

Financial impropriety, dishonesty and discriminatory conduct are given as examples of issues that could prompt regulatory action, while competence as a school governor or involvement in a neighbour dispute are matters the regulator says it isn’t interested in.

Toe the line

In August 2019, the SRA rebuked a registered foreign lawyer – a partner at a wellknown city firm – following an employment tribunal decision that found he had directly discriminated against his children’s nanny on the grounds of pregnancy; and had unfairly dismissed her.

The rebuke caused consternation, as legal professionals tried to understand where this left the line between professional and private lives; and when the regulator might take action in relation to conduct in the latter.

The SRA has also published five topic guides designed to “summarise the main factors we consider when looking at potential breaches in specific topical areas, or areas where there is the most potential for uncertainty”. Three of these are relevant to conduct in private life and provide pointers about behaviour likely to be of interest to the regulator (criminal offences; drink-driving convictions; and the use of social media and offensive communications).

Regarding criminal offences, the SRA says it is “less likely to be concerned about behaviour which is at a low-level in terms of seriousness (for example, actions that result in fixed penalty notices, or minor  motoring offences)”.

Both the regulator and the Solicitors Disciplinary Tribunal (SDT) “will treat a certificate of conviction as conclusive proof of a person’s guilt and, save for in exceptional circumstances, the underlying facts”. The SRA adds that a person who accepts a caution can only do so if they admit they committed the offence.

Moment of madness

This is not always understood, as illustrated by the case of the junior solicitor questioned by airport police for theft of a pair of sunglasses which she returned to the store after accepting a caution.

The SDT told the solicitor, who was in her first year of qualification, that public trust “depended upon the reputation of the solicitor’s profession as one in which every member might be trusted to the ends of the earth.

A solicitor, who accepted a caution for the offence of theft, thereby admitting they had been dishonest, undermined that reputation”.

Although this was said to be a one-off moment of madness by a very junior solicitor who expressed remorse and insight, the SDT did not see the conduct as fitting into the exceptional category of dishonesty cases where striking off would be disproportionate.

The SDT justified its decision to strike the solicitor off with reference to the “essential issue”, described in the case of Bolton v The Law Society [1994] 1 WLR 512 of “the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness.”

The SRA says this remains “good regulatory law” in its principle 2 case study. If the concept of honesty seems clear-cut, integrity is arguably more nebulous. In its guidance, the SRA refers to Lord Justice Jackson’s shorthand description of integrity from Wingate & Others v SR A [2018] EWCA Civ 366: an expression of “the higher standards which society expects from professional persons and which the professions expect from their own members”.

However, later in the judgment Jackson LJ elaborates thus: “Obviously, neither courts nor professional tribunals must set unrealistically high standards... The duty of integrity does not require professional people to be paragons of virtue.” By omitting that additional commentary in its guidance, the SRA seems to be leaving its options open to take action against those it regulates for behaviour that happens in the wider context of their lives.

Jackson LJ added: “In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public. Having accepted that principle, it is not necessary for this court to reach a view on whether Howd was correctly decided.”

Howd was a case brought by the Bar Standards Board against a barrister following complaints of inappropriate behaviour towards colleagues at a party held at the barrister’s previous chambers. The decision to skirt Howd appears at odds with recent regulatory action by the SRA.

In its topic guide on the use of social media and offensive communications, the SRA is clear that “regulatory action can be taken if the sender is identifiable as someone we regulate (even if acting in a personal  capacity) and the communication would tend to damage public confidence.” The guidance is supplemented by an earlier warning notice, which has been updated to reflect the current rules.

The SRA has not been shy in taking regulatory action in this context. In 2018, one solicitor was fined in the SDT and a partner suspended for sending offensive tweets. The latter had been a solicitor for 32 years and was her firm’s compliance officer. The tweets were sent in the solicitors’ personal capacities, ie, on matters unconnected with their professional work.

In another instance (more obviously connected to professional life), a solicitor was sanctioned for tweeting inappropriate comments and emojis, including one that revealed client confidential information;  and some that were said to trivialise serious criminal charges. In a further case, a firm tweeted about a “great win” against the parents of a disabled child, which resulted in a rebuke (and the public departure of  two local authority clients).

The SRA guidance all points towards an approach that places public confidence at its heart. How far that focus reaches into personal lives will depend on how far behaviour can be said to reflect on professional lives.

What is clear is that regulated individuals need to adhere to the principles and behave ethically in all aspects of life, to ensure they stay on the right side of the regulatory line.