Acting to stop harm: the FCA and Appointed Representatives
With Christmas just around the corner, many of us will be inundated with festive events to kick off the season in style. Whilst this is an opportunity to indulge in mince pies, mulled wine and socialise with colleagues, remember that upholding the reputation of your profession remains a permanent state of affairs, and not an obligation which can be ‘relaxed’ simply because it’s Christmas.
With the introduction of the SRA’s new Standards and Regulations (StaRs) last month, regulated professionals need to be aware, now more than ever, that how they behave both inside and outside of the workplace can affect their registration, their employer and the reputation of the profession more widely.
No matter how many festive cocktails you’ve enjoyed, remember to think carefully before posting on social media and consider the implications it could have on your career. In (R (Pitt and Tyas) v General Pharmaceutical Council  EWHC 809 (Admin) the court gave short shrift to the submission that it was ultra vires for a regulator to set Standards that applied beyond the scope of the traditional workplace. It follows, that even if your use of social media is unrelated to your role as a regulated professional, an allegation of misconduct can still follow.
The publication of the SRA’s ‘Warning Notice’ and its topic guide on ‘Use of social media and offensive communications’ leaves the reader in little doubt that communications outside of your practice are likely to attract regulatory attention if they are, (amongst other things), offensive in respect of another person’s race, sexual orientation, religion; referring to women in derogatory terms or using language intended to shock or threaten. For example, in December 2018, Mark Lewis (a solicitor) was fined £2,500 by the Solicitors Disciplinary Tribunal (SDT) for responding to a tweet in an offensive and inappropriate manner.
The wind is blowing in the same direction for the Bar. The Bar Standards Board (BSB) introduced its Social Media Guidance in October 2019. The BSB reminds barristers that ‘
comments designed to demean or insult are likely to diminish public trust and confidence in the profession’ and that ‘it is also advisable to avoid getting drawn into heated debates or arguments’.
Care should always be taken in considering the content and tone of what you are posting or sharing, in particular if sharing offensive communications, (without making it clear you disagree with its content), as this may be taken as an endorsement of that communication.
In a post #MeToo era, we have witnessed a sea change in workplace culture of which regulated professionals need to be mindful. It is evident from the introduction of the SRA Code of Conduct for Firms that the regulator has stepped up its vigilance in this area - it is becoming a key priority of the SRA ‘to create and maintain the right culture and environment for the delivery of competent and ethical legal services to clients’. That message is reiterated in the SRA’s Enforcement Strategy, emphasising a key aim of regulation is to ‘promote a culture in which ethical values and behaviours are embedded’.
Interestingly, changes to the reporting obligations of solicitors and firms are also following suit, in particular, the SRA provisions now require earlier and prompter reporting in respect of concerns raised. The Enforcement Strategy emphasises that where a ‘serious breach is indicated’ firms should notify the regulator at an early stage irrespective of whether an internal investigation is on-going. Moreover, whilst recognising whether or not a complaint should be reported is a delicate exercise, if there is any uncertainty over whether to do so, firms are actively encouraged to ‘err on the side of caution’ and make a report. Whilst it is sufficient for an individual to refer a concern to the firm’s compliance officer on the understanding they will notify the SRA, reporting internally is no longer sufficient if the compliance officer takes a contrary view. In those circumstances, there is an obligation on the individual to report the matter to the SRA themselves. An earlier blog in our StaRs series explored these changes.
One of the key focus areas for the SRA is sexual misconduct in the workplace, and the cultures which allow this to occur. It will be interesting to see what cases come through the pipeline in 2020. The first case of this kind was that of Ryan Beckwith, a former partner at a large City firm. Mr Beckwith was ordered to pay £35,000 in fines by the SDT, but is still able to practise as a solicitor.
The Christmas period, for some, means increased consumption of alcohol. Be warned: regulated professionals can expect to face not only criminal proceedings, but regulatory repercussions as well, should their conduct be called into question. Regulated individuals are expected to behave with integrity and in a way which promotes public trust in the profession. We are also expected to uphold the rule of law and the proper administration of justice.
One only needs to take a cursory glance at the decisions of the SDT and BSB to know how seriously drink driving is viewed. For example, in August 2019, solicitor Michael Alan Reeves, who was twice convicted of drink driving over a period of two months, was fined £2,000.
The SRA have published a topic guide on their approach to those who are convicted for driving with excess alcohol. In particular, confirmation that a conviction for such offending ‘demonstrates conduct that would tend to diminish public trust and confidence in the profession’, that serious sanctions will be imposed where aggravating features are present and the SRA will take ‘very seriously’ any failure to cooperate with the criminal process, (such as resisting arrest or refusing to be breathalysed/provide a specimen).
The SRA has given a clear message about the standards of behaviour it expects from those it regulates. The Enforcement Strategy in particular provides a helpful steer as to what types of conduct the regulator is likely to focus on. The SRA’s new ethical standards are clear: they apply outside of the office and the courtroom; and so regulated professionals will need to bear in mind that how they behave in all walks of life can have a direct impact on their ability to practise.
Katryn Sheridan is a barrister in the Regulatory team. She is an experienced regulatory and criminal law advocate acting for regulatory bodies as well as prosecuting and defending in the criminal courts. Kathryn has extensive experience prosecuting health care practitioners on behalf of the Health and Care Professions Council ranging from serious sexual misconduct to lengthy competency cases. Kathryn has also acted on behalf of the Architects Registration Board before the Professional Conduct Committee.
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