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When professional becomes personal

Whilst many working in law accept the regulator’s involvement in and influence over their professional lives, they are less understanding about intrusion into their personal lives.  However, regulators can and do look at behaviour outside of professional practice and it is vital to be alive to that.
 
In a case study on its website under the heading “SRA Principle 2 - public trust and confidence”, the Solicitors Regulation Authority (SRA) advises that “Behaviour within or outside practice which undermines public confidence damages not only any individual involved but also the ability of the legal profession as a whole to serve society.”
 
There are now seven mandatory Principles that apply to all who are regulated by the SRA (with some nuances for those practising overseas), which the SRA describes as the “the fundamental tenets of ethical behaviour”.  They direct that regulated individuals act: 
 
  1. in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice;
  2. in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons;
  3. with independence;
  4. with honesty;
  5. with integrity;
  6. in a way that encourages equality, diversity and inclusion;
  7. in the best interests of each client.
 
The SRA’s Enforcement Strategy makes clear that the Principles “apply at all times and in all contexts … both in and outside of practice (as the context permits)”.  The SRA’s published line is that “the closer any behaviour is to professional activities, or a reflection of how a solicitor might behave in a professional context, the more seriously we are likely to view it.”  Financial impropriety, dishonesty and discriminatory conduct are given as examples of issues that could prompt regulatory action, whilst competence as a school governor or involvement in a neighbour dispute are matters the regulator says it isn’t interested in.
 
In August 2019, the SRA rebuked a registered foreign lawyer (and partner at a well-known city firm), following an employment tribunal decision that found he had directly discriminated against his children’s nanny on the grounds of pregnancy and had unfairly dismissed her.  The rebuke caused consternation, as legal professionals tried to understand where this left the line between professional and private lives and when the regulator might take action in relation to conduct in the latter.
 
The SRA has also published five Topic Guides designed to “summarise the main factors we consider when looking at potential breaches in specific topical areas, or areas where there is the most potential for uncertainty.”  Three of the guides are relevant to conduct in private life and provide pointers about behaviour likely to be of interest to the regulator: criminal offences; drink-driving convictions; and the use of social media and offensive communications
 
Regarding criminal offences, the SRA says it is “less likely to be concerned about behaviour which is at a low-level in terms of seriousness (for example, actions that result in fixed penalty notices, or minor motoring offences).”  Both the regulator and the Solicitors Disciplinary Tribunal (SDT) “will treat a certificate of conviction as conclusive proof of a person’s guilt and, save for in exceptional circumstances, the underlying facts”.  The SRA adds that a person who accepts a caution can only do so if they admit they committed the offence.  This is not always understood, as illustrated by the case of the junior solicitor questioned by airport police for theft of a pair of sunglasses which she returned to the store after accepting a caution.  
The SDT told the solicitor, who was in her first year of qualification, that public trust “depended upon the reputation of the solicitor’s profession as one in which every member might be trusted to the ends of the earth. A solicitor, who accepted a caution for the offence of theft, thereby admitting that they had been dishonest, undermined that reputation.”
 
Although this was said to be a one-off moment of madness by a very junior solicitor who expressed remorse and insight, the SDT did not see the conduct as fitting into the exceptional category of dishonesty cases where striking off would be disproportionate.  The SDT justified the decision to strike the solicitor off with reference to the “essential issue”, described in the case of Bolton v The Law Society [1994] 1 WLR 512 as “the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness.”  In its Principle 2 case study, the SRA says this remains “good regulatory law”.
 
If the concept of honesty seems clear-cut, integrity is arguably more nebulous.  In its guidance, the SRA refers to Jackson LJ’s shorthand description of integrity from Wingate & Others v SRA [2018] EWCA Civ 366: an expression of “the higher standards which society expects from professional persons and which the professions expect from their own members."
 
However, later in the judgment Jackson LJ elaborates, saying: “Obviously, neither courts nor professional tribunals must set unrealistically high standards... The duty of integrity does not require professional people to be paragons of virtue.”  By omitting that additional commentary in its guidance, the SRA seems to be leaving its options open to take action against those it regulates for behaviour that happens in the wider context of their lives.
 
Jackson LJ then adds that “In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public.  Having accepted that principle, it is not necessary for this court to reach a view on whether Howd was correctly decided.”  Howd was a case brought by the Bar Standards Board against a barrister following complaints of inappropriate behaviour towards colleagues at a party held at the barrister’s previous chambers.  The decision to skirt Howd appears at odds with recent regulatory action by the SRA.
 
In its Topic Guide on the use of social media and offensive communications, the SRA is clear that “regulatory action can be taken if the sender is identifiable as someone we regulate (even if acting in a personal capacity) and the communication would tend to damage public confidence.”  The guidance is supplemented by an earlier Warning Notice, which has been updated to reflect the current rules.
 
The SRA has not been shy in taking regulatory action in this context.  2018 saw one solicitor fined in the SDT and a partner suspended for sending offensive tweets; the latter had been a solicitor for 32 years and was her firm’s compliance officer.  The tweets were sent in the solicitors’ personal capacities, that is, on matters unconnected with their professional work.
 
In another instance more obviously connected to professional life, a solicitor was sanctioned for tweeting inappropriate comments and emojis, including one that revealed client confidential information and some that were said to trivialise serious criminal charges.  In another case a firm tweeted about a “great win” against the parents of a disabled child, which resulted in a rebuke (and the public departure of two local authority clients).
 
The SRA guidance all points towards an approach that places public confidence at its heart.  How far that focus reaches into personal lives will depend on how far behaviour can be said to reflect on professional lives.  What is clear, is that regulated individuals need to adhere to the Principles and behave ethically in all aspects of life, to ensure they stay on the right side of the regulatory line.

A version of this article was first published in the March 2020 edition of the Solicitor’s Journal (Volume 163 No.3)
Emma Walker
April 2020

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