In December 2019, we reviewed the Solicitors Disciplinary Tribunal (SDT) judgments delivered since August 2019 and queried whether we are seeing and will continue to see a change in the SDT prosecution profile (see article here).
The SDT recently handed down judgment in the Beckwith case (SRA v Ryan Beckwith ) providing written reasons for the decision reached in October 2019. The judgment appears to support our contention that all aspects of a solicitor’s conduct inside and outside the office will be open to investigation where the Principles are engaged and that a category of SDT judgments, concerning a solicitor’s conduct which causes no financial detriment to clients, is currently evolving.
These type of judgments are not limited to solicitors and there is a clear trend emerging that encompass other professionals and their regulatory bodies who are turning their focus to non-financial misconduct (see article here).
Here, we focus on three aspects of the judgment of general interest to practitioners: (1) the reliance placed by the SDT on the firm’s own investigation into the events (2) the “private life” issue and the extent to which conduct outside of the office is subject to regulatory sanction and (3) the reason for the sanction (which has been criticised by some). The judgment is subject to appeal by Mr Beckwith.
The judgment refers to the outcome of an internal investigation undertaken by the firm following a complaint made after the relevant events.
The investigation, undertaken by Person G, was subsequently reviewed by Person H. Person H’s recommendation was that a final written warning be issued to Mr Beckwith. That process required him to sign a document (without any discussion of its terms) in which an admission was made that his conduct had fallen below the standards expected of a partner (judgment at paragraph 25.83). The findings of the investigation are recited at paragraph 25.132 and include a finding of an abuse of a position of power and authority.
It is not clear from the judgment whether the SDT was just provided with the outcome of the investigation or any of the working papers or evidentiary records (although it appears that records of interviews conducted by Person G were made available). The extent of the Solicitors Regulation Authority’s (SRA) investigative powers are well known but in this case, where no allegations were made against the firm (and the investigatory process was not criticised in any way unlike allegations made by the SRA in the Senior/Baker Mackenzie case) complex issues of confidentiality and privilege (to the extent, if at all, that outside lawyers were involved in the investigation) may arise.
The private life issue
When the outcome of the case became known in October last year, many commented on whether the SDT was an appropriate forum for dealing with the allegations and whether there was unnecessary regulatory “reach” into the private lives of solicitors. Paragraphs 25.184 to 191 meet this challenge head on and conclude that:
- Principles 2 (upholding trust and confidence in the profession) and 6 (integrity) extend to all activities of a solicitor, in the office and in their private life.
- There are many examples of the SDT making findings against solicitors who have been, for example, convicted of criminal offences in their private life which had nothing to do with their practice.
- The list of examples of conduct in SRA v Wingate  (the leading case on principle 6) which illustrate a lack of integrity were not exhaustive.
- The impugned conduct would lower the reputation of the profession, such that it was conduct which was appropriate for the Regulator to be concerned with.
The SDT also referred to the final warning given in the firm’s investigation, namely that it had been implicitly accepted (by an admission that the conduct had fallen below the standards of a partner) that there was a breach of Principle 6 (see paragraph 25.191).
Of general application was the following finding concerning an interlocutory challenge made on the basis of SRA’s “jurisdiction” in respect of Article 8 of the ECHR (European Convention on Human Rights):
“The Tribunal found that whilst the case was novel in that the allegations made by Person A (but not by the SRA) had not been the subject of criminal proceedings, the application of the Principles to conduct that fell outside a Respondent’s professional life was routine. That Principles 1, 2 and 6 applied to private conduct was expressly stated in the Application Provisions of the Principles. The Tribunal regularly interfered with a Respondent’s Article 8 rights when considering whether private conduct amounted to a breach of a Respondent’s duties and obligations under the Principles. The Tribunal did not consider that private conduct needed to amount to criminal conduct before there could be any legitimate interference with Article 8 Rights. The Tribunal determined that in the circumstances of this case, such interference was both proportionate and necessary to maintain public trust in, and the reputation of, the profession.”
Mr Beckwith was fined £35,000 and ordered to pay £200,000 towards the SRA’s costs (about 60% of the billed amount).
The SDT carefully considered the appropriate sanction in paragraphs 30 to 37 and concluded that the conduct was spontaneous, a one off (a complaint in respect of other conduct was not proven), fuelled by alcohol and that there was no ongoing risk to the public or client detriment. Genuine insight had been shown.
As to the future: “The Tribunal did not find that the circumstances of the case were such that a Restriction Order was necessary… to protect the public. The insight displayed by the Respondent was not such as to call into question his continued ability to practise appropriately.”
The case, and other similar ones, have attracted headlines in the legal and national press and much has been said about the culture of firms and the fact that relationships between employees of different levels of seniority are not at all unusual. The SRA accepts the principle that office relationships of themselves are not “prohibited’ as a matter of conduct:
It was not the Applicant’s case that a professional relationship would always have the effect of prohibiting or precluding intimate personal relationships or sexual contact. Each case would depend on its own facts.