Remark: Errors in Beck’s regulation enforcement undermine the #MeToo fight and muzzle regulator
The ink is barely dry after Friday’s High Court ruling that overturned the Solicitors Disciplinary Tribunal’s finding against ex-Freshfields partner Ryan Beckwith, and the shock waves in the legal industry are starting to be felt.
In the unlikely event that the contents of the judgment escaped no one, the Queen’s Bench Division judgment reversed the October 2019 SDT findings that Beckwith’s drunken sexual activity with a drunk employee violated Principles 2 and 6 of the Solicitors’ Code of Conduct Breach of Regulation Authority has fined £ 35,000 and annulment of order over £ 200,000.
The respective points relate to the SRA code, according to which lawyers must “act with integrity” and “behave in such a way that the public’s trust in you and in the provision of legal services is preserved”.
At best, the High Court verdict mocks a tribunal that has long been lacking gravitas and firepower. At its worst, this has been a huge setback to the steps the SRA has taken since the beginning of the #MeToo movement to address the insidious problem of sexual misconduct in a hierarchical legal industry.
To what extent the regulator felt the Magic Circle partner needed to shed a high-profile scalp is controversial, but the link between the SRA’s allegations against Beckwith in May 2019 and the basis the Tribunal reached in their decision has always been alarming ambiguous.
The SDT’s claim that no determinations were made as to whether Person A consented to the sexual activity was worrying, although consent implicitly supports the claim in subsection 1.2.5: “[Beckwith] knew, or should have known, that Person A had not allowed him into their home for sexual activity. In addition, much of the testimony and cross-examination touched upon Person A’s ability to consent.
Suzanne McKie QC, a specialist in gender discrimination and harassment and founder of Farore Law, agrees with the High Court’s ruling on the grounds that the SDT’s reasoning was fundamentally flawed. ‘The tribunal’s decision was a bit of a mess. It was not achieved because the sex was not consensual due to the extent of the poisoning. The SDT noted that Beckwith had not abused his position, perhaps because it was leaving and he no longer had any authority over her. The tribunal also does not find that Person A was vulnerable. So the activity is essentially private and consensual and takes place in a private location away from the office. It cannot be said that this brings the profession into disrepute, and one cannot keep lawyers at a much higher level in their personal life than anyone else. ‘
It is clear that the High Court strongly opposes regulators who meddle in private matters that violate Article 8 of the European Convention on Human Rights – the right to a private life.
The court said, “The regulators will do well to recognize that it is all too easy to be dogmatic without knowing it. The public outcry is not evidence that any particular series of events lead to matters falling within the purview of a regulator. “
Richard Moorhead, Professor of Law and Ethics at the University of Exeter and former director of the UCL Center for Ethics and Law, takes a different view: “My instinct is that this is not part of personal life but part of working relationships and he was in a position of authority. There is one argument that “something like this happens all the time” and the other that this is clearly a problem. He was a partner and had responsibility. You can’t get legless and try it on. ‘
There are obvious questions as to whether the principles of the SRA, essentially a list of low-detail behaviors, and the incentives for lawyers to self-regulate, have been a flawed approach.
‘It is a real question whether a principles-based approach to the Code can be enforced when the High Court is able to cut the legs off under the SDT and the SRA. This undermines the principle-based approach and the fight against sexual misconduct, ”says Moorhead.
However, the bigger problem still seems to be the SDT’s reputation as an “amateur lesson”, with too many part-time workers and a lack of adequate expertise for some time. The Beckwith case will inevitably and rightly call into question the jurisdiction of the court to deal with such serious complaints.
It could also be questioned whether the restriction of the SRA by its new code of conduct has not pushed the reporting requirements too much in the other direction. It is rumored that attorneys subdued colleagues on the basis of something substantial as paper gossip.
The Beckwith saga also raises the question of whether the outcome would have been different if the prosecution had not taken place before the November 25, 2019 SDT transition from a criminal to a civil evidence standard, as envisaged by the majority of professional regulators. The postponement replaced “no doubt” with the less stringent “balance of probabilities” test, making it easier to ensure prosecution against wrongdoing and potentially triggering a new round of action.
It is really up to the law firms to tackle the allegations themselves at the severity they deserve and forensically analyze the facts regarding abuse of authority, private / personal conduct and consent before the regulator gets involved.
The verdict can be viewed as a fair conclusion to an abused law enforcement, but that doesn’t mean the SRA didn’t have the right to refer the case in the first place. Now all eyes will be on whether the regulator will bring their case to the appeals court, if only to bolster the principles in their code of conduct and bring them back to the appearance of a respected framework.
After all this advances, it would be extremely detrimental to the fight against wrongdoing if the regulator returned to a bark worse than its bite.