Kingsley Napley Spotlight Series - Insights into Legal Services Regulation

All well and good

6 June 2021

This article  first featured in the  Law Society's  publication,  Legal Compliance. You can also read the article in full by clicking here.

The discourse around mental health and wellbeing at work has escalated over recent years, with employers becoming increasingly aware of its importance. In part, this has been driven by public policy. In 2017, the government commissioned an independent review of mental health at work. The Stevenson/Farmer review  reported that the UK faces several significant mental health challenges across its employment sectors as a whole.

Consequences

Besides the human cost of poor workplace mental health on individual’s lives and their families, the review highlighted large economic costs to employers of between £33bn to £42bn annually, attributed to lost productivity owing to mental ill-health at work, sickness absence and staff turnover. Several recommendations were made, including a framework for employers comprising six mental health core standards. The report also called for professional bodies and regulators to develop their approach to workplace mental health and encourage employers to implement these standards. 

Around the same time, the Junior Lawyers Division launched its first survey aimed at better understanding the mental health and wellbeing of its members. Its most recent survey, Resilience and wellbeing survey 2019 , completed by 1,803 junior lawyers, revealed:

  • over 90% felt stressed in their role, with almost 25% of those individuals feeling severely or extremely stressed

  • one in 15 indicated they’d had suicidal thoughts

  • 77% reported that their firm could do more to support stress at work, and

  • 67% reported they had either made, or nearly made, a mistake because of work-related stress, which wouldn’t have happened otherwise.

The 2019 survey also reported that 48% of respondents experienced a mental health problem in the month before completing the survey, which was 10% higher than in 2018 and 20% higher than in 2017.

 

SDT cases

On top of the human and economic costs of workplace mental ill-health outlined above, several cases have been heard before the Solicitors Disciplinary Tribunal, which demonstrate the regulatory consequences of poor mental health in the profession. The most notable case was SRA v James; SRA v MacGregor; SRA v Naylor [2018] EWHC 3058 (Admin), which sparked concerns across the profession around mental ill-health arising from poor workplace culture, and emphasised the detrimental impact it can have on individual careers and firm reputation. 

In quashing the tribunal’s sanctions of suspension and replacing them with orders for striking off, the High Court restated the current law, that where dishonesty is proven, the general rule of strike-off must apply unless the dishonest conduct falls within the small residual category of ‘exceptional circumstances’ (applying SRA v Sharma [2010] EWHC 2022 (Admin)). While the court acknowledged the severity of individual consequences that might arise from poor workplace culture, mental ill-health arising from ‘toxic’ work environments could not in itself amount to exceptional circumstances; rather, the seriousness, nature, and extent of the dishonest conduct will hold greater weight in determining the appropriate sanction. 

The regulatory consequences for dishonest conduct therefore remain strict and severe, and the courts and tribunal seem intent on keeping the small residual category of exceptional circumstances to strike off as small as possible. This being so, greater attention has been drawn to the importance of having a good workplace culture to safeguard lawyers’ wellbeing, and on the role of firms and the Solicitors Regulation Authority (SRA) to ensure that cases such as James are prevented from happening in the first place.

 

SRA approach

The Stevenson/Farmer review proposed that regulators can and should be doing more to drive forward good mental health in the workplace, recommending they should “use the most suitable regulatory approaches available to them” to encourage employers to create mentally healthy workplaces and supportive cultures. 

The SRA Standards and Regulations 2019 include greater references to workplace culture, perhaps reflecting the SRA’s interest in driving forward change in this area. The SRA’s Code of Conduct for Firms expressly states that the code aims to “create and maintain the right culture and environment for the delivery of competent and ethical legal services to clients”. The SRA’s enforcement strategy and code, which underpins the code, further emphasises their purpose in promoting workplace cultures in which ethical values and behaviours are embedded. Particularly, the strategy states that the SRA will take action against a firm, either alone, or in addition to taking action against an individual, “when the events demonstrate a failure which relates to culture, systems, supervision arrangements or processes for which the firm, as a whole, should be held accountable”.

 

Creating the right firm culture

The SRA sets regulatory obligations on firms to create an ethical workplace. These are examined in detail in the article "Ethical Imperatives". There will be many aspects to achieving the right culture, though there is currently no clear guidance from the SRA on how firms should do this, nor any cases where the tribunal has been asked to interpret regulatory breaches in light of it. The tribunal has, however, highlighted management failures creating ‘toxic’ workplaces and the need for firms to be more aware of mental health issues affecting employees. 

In James , the SDT helpfully commented: “During the last 10 to 15 years, and in particular in the last five years or so, awareness and openness concerning mental health issues have developed. Management at law firms and elsewhere should be more alert to the warning signs, which included, among other things, decline in performance, physical symptoms of distress, and uncharacteristic behaviour such as a drop in reliability. Management should be able to respond appropriately, for example by providing access to external counselling services. We have all become much more aware of bullying and harassment in the workplace which can have a significant impact on employees, particularly those who might be described as being vulnerable.” 

A recent statement by the SRA in the Law Society Gazette suggests it is contemplating action against some firms: “We are already investigating firms for potential issues over workplace culture and the way they have handled issues”. The outcome of this action should be informative. Firms should be conscious of this development and some may need to look afresh  at their organisational policies and practices. 

 

Management culture

A healthy work environment relies on those at partner and director  level creating a supportive culture. If unreasonable demands are made 
by those at the top, managers who report to them will tend to pass the pressure they are feeling on to those they manage. Proper support includes creating an openness within a firm for employees to talk about their problems, whether with work or with mental health issues. In particular, employees need to feel that they can be open about mistakes they make. One of the key messages that is evident from recent cases is that, where there is no openness, there is greater temptation for employees to struggle on and to try to cover up their mistakes which inevitably compounds the error.

While we remain hopeful for more guidance from the SRA on how managers can create mentally healthy workplaces and cultures, LawCare, the charity that helps those with mental health issues and provides educational support for firms on handling them, offers a workplace hub  with recommendations including the following advice:

1. Any initiative by a firm to create a supportive work environment must start at the top and encourage staff to feel free to talk about any issues concerning themselves or their work.

2. The firm must raise awareness of mental health issues and

  • encourage staff to look after their health,

  • raise awareness of the signs of poor mental health, and

  • signpost staff to sources of help.

3. The firm should incorporate in training and development

  • the importance of ethical standards, and

  • the importance of each individual taking responsibility for health issues.

The Law Society has also updated its guidance for firms, Supporting wellbeing in the workplace: Guidance for best practice (2019), which covers best practice for safeguarding and promoting the wellbeing of legal professionals in the workplace and focuses on support, education and training, and culture.

A final thought for those who manage firms is that management failure goes wider than just the potential for them to face disciplinary action; it can lead to client complaints, negligence claims, staff retention problems and wider reputational issues. Avoiding these consequences are all compelling reasons for ensuring that ‘the right culture and environment’ is in place.

 

Taking responsibility 

All solicitors are responsible for their own regulatory compliance and their focus should be the SRA Principles and the Code of Conduct for Solicitors, RELs and RFLs. The introduction to the Principles makes clear that the SRA views them as “the fundamental tenets of ethical behaviour that we expect those we regulate to uphold”. Whatever the stresses of client work, the office environment, or those which come with poor mental health, the Principles create red lines which should never be crossed. If they are, the consequences are going to be severe. Failing to act with honesty and/or integrity will almost inevitably lead to the ultimate penalties of striking off or suspension. 

Maintaining trust and acting fairly 
in particular not misleading the court or clients – and maintaining competence and delivering a competent and timely service are regulatory obligations  that are most likely to be breached in circumstances where an individual is struggling with poor mental health, and particularly where this is compounded by an unsupportive work environment. Being aware of, and meeting, regulatory obligations should be ingrained in every solicitor’s ethical compass and self-survival kit. 

Individual responsibility for good mental health can greatly assist with this. It can be achieved and maintained by simple, common sense strategies which include, for example, taking regular exercise, eating a healthy diet, taking breaks from work, not drinking too much alcohol, and sharing feelings and maintaining relationships with others. For those who are struggling, it is important to reach out to sources of help.

Again, LawCare may be helpful. It offers a helpline and a webchat facility run by those with private practice experience. Callers often find that this helps them to put their situation in perspective and gives them renewed focus on how to deal with stressful situations at work. LawCare’s website has factsheets on dealing with many issues that affect wellbeing such as depression, anxiety, bullying and bereavement. It also has life stories of those who have suffered from mental health problems, explaining how they have coped, and a section on top tips for maintaining good mental health.

 

Impact of covid

Much has been written about the problems firms and individuals have faced following enforced lockdowns. There have been many examples of excellent firm initiatives to support and help staff, and also the reverse where unsympathetic managers have piled on pressure to add to the additional stresses that can be created by home working. 

LawCare has seen examples of staff being forced to work while furloughed, others working excessively long hours to cover for those that are furloughed, and others being texted and called at all hours of the evening and night. The fallout from this has yet to be analysed in detail. A poor culture will inevitably impact on the mental health and wellbeing of those working in it, and the SRA’s recent indication that it is already investigating firms for potential issues over workplace culture suggests it may start to make an example of those firms. 

 

If you have any questions or concerns about the content covered in this blog, please contact  Lucinda Soon or a member of the Regulatory team.

ABOUT THE AUTHORS

Lucinda Soon is a professional support lawyer in the Regulatory team, and is responsible for knowledge management and practice development. She has previously advised individuals and organisations in the legal and accountancy sectors on authorisations, compliance, ethics, and regulatory policy, and formerly worked as a PSL in the General Counsel team at the Solicitors Regulation Authority. Lucinda is a keen advocate for mental health and well-being at work, and is currently pursuing a PhD in Organisational Psychology, where her research focuses on well-being in legal practice. She is also a Trustee of LawCare.

Bronwen Still is a solicitor and compliance expert who, as a director of Infolegal, has specialised in helping firms and ABSs with all aspects of applying to be authorised and licensed by the SRA. She previously worked for the Law Society and the Solicitors Regulation Authority in many different capacities, including Head of the Professional Ethics guidance team and Head of Standards. Bronwen is also a Trustee of LawCare.

 

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