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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
This article was first published by The Times on 25 March 2021 which you can read in full by clicking here (subscription required).
The solicitors’ watchdog is right to take charge of misconduct cases but it needs firmer guidance to succeed .
Compared with other watchdogs, the Solicitors Regulation Authority (SRA) has been one of the most vocal and active on so-called #MeToo issues.
However, its approach is still a jumble after Ryan Beckwith, a former partner at Freshfields Bruckhaus Deringer, last November overturned a disciplinary tribunal for misconduct. As a result, the profession urgently needs clarity.
The authority has rightly formed the view that sexual misconduct in law firms is a regulatory matter. This move was critical to bolster and support its role in encouraging and enforcing diversity and equality.
But however justified that stance, it came in an area where there were no existing principles that indicated what the parameters of any misconduct would be. This arena was, and still is, such new territory that a policy view would have been helpful at the outset, setting out the SRA’s position on what behaviour should be categorised as misconduct, where the line falls in respect of public and private life and what distinguishes serious and less serious cases.
The SRA has produced warning notices on various closely linked topics including the use of non-disclosure agreements. It is not clear why it has not done so in relation to sexual misconduct in the workplace.
If guidance had been issued and cases strategically selected to illuminate the boundaries, then policy from the SRA coupled with subsequent disciplinary tribunal decisions would have provided clarity.
The SRA has still not issued any detailed policy guidance and the cases it has brought have not brought clarity. While some cases have succeeded, Beckwith clearly did not and the High Court ruling in November muddied the water further.
Three key areas were engaged by the facts of the case: consent, the private life boundary and abuse of power. On consent, the SRA did not, for reasons that are not entirely clear, allege any wrongdoing. As to abuse of power, no evidence was advanced. As a consequence of this approach, the High Court clearly was reluctant to find professional misconduct without a sound basis.
The decision in Beckwith, the first to reach the High Court on this important topic, did not take the issues any further forward and if anything is a backward step for the SRA. But anyone that thinks it will stop the regulator from investigating and referring matters to the tribunal is mistaken.
Firms and individuals need to understand where the boundaries lie so that they can make informed decisions on reporting obligations. Understanding the boundaries will also help drive forward the cultural change that is necessary in some parts of the profession.
The SRA must consider the lessons from the cases it has brought, as well as those it has not, and share that learning with the profession.
If you have any questions about the issues discussed in this article, please contact Iain , Julie or a member of our regulatory team.
Iain Miller is a Partner in the Regulatory department and specialises in advising law firms and the legal professionals on legal ethics, investigations, and public law matters. He is General Editor of the leading textbook on legal services regulation, Cordery on Legal Services as well as Chair of the Association of Regulatory and Disciplinary Lawyers.
Julie is a partner in the Regulatory Team. She predominantly acts in the professional services sector, advising lawyers, accountants and built environment professionals on regulatory compliance, investigations, adjudication, enforcement and prosecutions.
You can also download our recently published white paper summarising the points highlighted in this article and key insights discussed during the teams Spotlight Series webinar , Insights into Legal Services Regulation in 2021: The Impact of Beckwith v SRA, using the form below.
The white paper produced following on from this webinar forms part of a series that Kingsley Napley will be running through 2021, covering a range of some of the most important regulatory issues and/or developments facing the legal professions in 2021.
We are delighted that a number of thought leaders in the sector will be joining us during the series to share their insights. If you would like to be kept informed in relation to these events please click here.
Ensuring the safety and health of employees is a cornerstone of responsible business practice in the UK. At the heart of this responsibility lies the legal requirement to carry out workplace risk assessments—a duty enshrined in the Management of Health and Safety at Work Regulations 1999 (MHSWR). This article sets out the legal framework surrounding risk assessments, outlines practical steps for compliance, and includes expert insights from Andrew Sanderson of Kingsley Napley and Craig Lydiate of Eighty20 Risk Systems.
On 18 November 2024, the SRA published its updated and now finalised guidance on internal investigations.
There has been a lot of media coverage about the benefits and dangers of artificial intelligence, and the speed of its development. Jessica Clay considers the challenges of regulation and whether it is keeping pace.
We are already half-way through 2024 and, as predicted, the fast-paced world of AML shows no signs of stagnation, with the key front line regulators such as the SRA frequently updating its AML guidance, as well as recent legislation from the European Commission, and specifically the creation of a new European AML agency in Germany. This blog continues our series of updates for legal practitioners and law firms on the key developments from recent months.
The Lawyer profiles our legal regulatory team who provide services and advice to law firms and lawyers.
At the start of November, the government will host the first global summit on artificial intelligence (AI), with a focus on the safe use of AI. The AI Safety Summit will be at Bletchley Park, a venue representing innovation and pioneering, and once the top-secret home of WW2 codebreakers.
Last week the BSB issued new Social Media Guidance, which seeks to help barristers understand how their duties under the BSB Handbook may apply to their use of social media.
The government has today laid before parliament regulations further extending the prohibition of the facilitation of sanction breaches, limiting access to advice from UK lawyers by individuals and businesses tied to the Russian regime, even where they have no underlying nexus with the UK.
The High Court has provided welcome guidance on what exactly constitutes the conduct of litigation: Iain Miller & Charlotte Judd examine this perilously grey area of the law
It’s been over a year since the government launched its call for evidence on SLAPPs (strategic lawsuits against public participation), seeking the views of the public on introducing legislation to address this perceived problem.
This blog covers some important developments in the AML world since our last update for legal practitioners and law firms.
Updates to Legal Sector Affinity Group (“LSAG”) AML guidance
The LSAG AML guidance for the legal sector, designed to help legal professionals and firms comply with the Money Laundering Regulations 2017 (as amended), was updated on 28 March 2023.
The Solicitors Regulation Authority (SRA) has been given the green light by the Legal Services Board (LSB) to amend the SRA Codes of Conduct in respect of treating colleagues fairly and with respect.
The LSB’s Decision Notice states the SRA’s intention to update the Codes immediately, “without further publicity or allowing [firms and individuals] time to prepare for the alterations”.
Indeed, these changes have already taken effect, introducing in the Codes explicit requirements for individuals to treat colleagues fairly and with respect, for managers to challenge behaviour that does not meet this standard, and for firms to treat those who work for and with them fairly and with respect, and to require their employees to meet that standard.
In January 2023, the Courts and Tribunals Judiciary released a Statement of Expected Behaviour (“the Statement”) setting out the standards of behaviour expected from all judicial office holders. The Statement expands on the existing Guide to Judicial Conduct and covers behaviour in and outside of court, between judicial office holders and with staff and court users.
In January 2023, the Courts and Tribunals Judiciary released a Statement of Expected Behaviour (“the Statement”) setting out the standards of behaviour expected from all judicial office holders. The Statement expands on the existing Guide to Judicial Conduct and covers behaviour in and outside of court, between judicial office holders and with staff and court users.
The government is on a path to introduce legislation that will enable the Solicitors Regulation Authority to take greater action against the ‘facilitators’ of money laundering; law firms will soon need to brace themselves for unlimited fines from the SRA for ‘economic crimes’.
Strategic lawsuits against public participation (SLAPPs) are legal actions that are taken not necessarily with the goal of winning in court, but which instead aim to intimidate, to induce fear, to tire and consume the financial and psychological resources of the target.
Jessica Clay, Iain Miller, and Lucinda Soon are delighted to have contributed a chapter in the new title by Globe Law and Business “Risk Management in Law Firms”, published in October 2022. The chapter, republished here, discusses the SRA’s increased spotlight on ethical culture in law firms, its origins and evolution through the years, where we are now, and what is on the horizon.
This update covers recent developments relating to the regulation of money laundering in the legal sector and implications for legal practitioners and law firms. Specifically, four updates are explored. The first relates the SRA’s AML information-gathering exercise, undertaken as part of its role as anti-money laundering supervisor under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. Second, we look at HM Treasury’s response to its consultation on reform of the UK AML regime. Relevant changes emanating from this are expected to come into effect on 1 September 2022 by way of new secondary legislation entitled ‘The Money Laundering and Terrorist Financing (Amendment) (No. 2) Regulations 2022’. The third development concerns HM Treasury’s approval of the updated Legal Sector Affinity Group (LSAG) Guidance which was issued in 2021. Finally, and linked to this, two new LSAG Advisory Notes have been published which serve to clarify expectations of the Legal Sector Professional Body Supervisors, including those of the Solicitors Regulation Authority (SRA), in relation to particular topical areas of risk.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Jemma Brimblecombe
Charles Richardson
Oliver Oldman
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