In a landmark joint judgment of the President of the Queen’s Bench Division, Dame Victoria Sharp, and Mr Justice Swift, overturned findings that Mr Beckwith had breached Principles 2 and 6 of the SRA Principles and reversed his fine and quashed the costs order (Beckwith v Solicitors Regulation Authority  EWHC 3231 (Admin)).
In June 2018, amid a febrile atmosphere generated by the #metoo movement, and in the midst of a Parliamentary Inquiry into sexual harassment in the workplace, the Solicitors Regulation Authority (SRA) decided to refer Ryan Beckwith, then an equity partner at Freshfields Bruckhaus Deringer to the Solicitors Disciplinary Tribunal after a former associate who had left the firm had complained about a sexual encounter between them two years earlier.
Mr Beckwith and the associate, referred to as ‘Person A’, had kissed in a pub and then taken a taxi to the associate’s home where they engaged in consensual sexual activity. The SRA alleged that this incident placed Mr Beckwith in breach of (then) Principle 2, the duty to act with integrity and (then) Principle 6, the duty to uphold public confidence in the legal profession. After a contested hearing in October 2019, the SDT rejected the SRA’s case that Mr Beckwith had abused his position of authority but found he had breached both principles because his behaviour in engaging in consensual sexual activity was ‘inappropriate’. He was fined £35,000 and ordered to pay £200,000 towards the legal costs of the Regulator.
Mr Beckwith’s appeal grounds of appeal can conveniently be described as falling into three categories. The first category of grounds asserted that the SDT had fallen into error by not first deciding whether or not Mr Beckwith’s actions amounted to ‘professional misconduct’ – in effect a sort of minimum threshold requirement before regulatory sanction could ensue. These submissions were rejected by the Divisional Court who were unwilling to insert any threshold into a scheme introduced by statute and whereby Rule 10 already provided for a standard of seriousness to be met prior to referral to the SDT, i.e. that the conduct complained of was sufficiently serious to mean that the SRA could not use its internal powers of punishment.
Instead the Court went on to examine the second category of appeal grounds – whether the findings of fact amounted to a breach of either or both Principles. The Court approached this question on the basis of whether the breaches were “qualitative”, in terms of whether the nature of the conduct itself amounted to a breach and then by assessing the scope of the Principles – in this case whether the Principles ought to apply to conduct outside of work (and accordingly whether the right to private life under Article 8 of the European Convention on Human Rights is engaged).
Principle 2 (now Principle 5) states that a solicitor must act with integrity. Much has been said about the concept of ‘integrity’ in previous authorities but it has never been examined in the context of consensual sexual activity. In examining what integrity means by reference to the scope of a solicitor’s obligation, the Divisional Court quoted oft repeated dicta of Jackson LJ in SRA v Wingate  1 WLR 3969 from which it extracted three principles: i) an association between integrity and adherence to the standards of the profession; ii) that in relation to matters associated with their professional standing solicitors are expected to held to a higher standard than those outside the profession; and iii) integrity does not require solicitors to be ‘paragons of virtue’.
On the question of whether Mr Beckwith had breached his duty to act with integrity the Divisional Court considered it necessary to look at the content of the Handbook (SRA Code of Conduct 2011) “because that is the legally recognised source for the regulation of the profession”. It went on to give specific guidance to the Tribunal on how it should approach the question of whether there has been a breach of integrity in cases (as here) where no dishonesty is alleged.
The Court held that this was an exercise to be undertaken on a case by case basis. In Mr Beckwith’s case, it was necessary to look at Chapter 11 of the Handbook and the section on ‘relationships with third parties’ as the incident in question involved relations with a colleague outside of work hours. The material obligation from this chapter was that a solicitor should not take advantage of others. As the Tribunal “was clearly right to conclude” that Mr Beckwith had not abused his position of seniority and authority, his conduct was not capable of showing a lack of integrity. However, the Court did go slightly further and issued a warning that any future formulations of rules must not extend too far into the personal life. There must be sufficient nexus to the workplace in the subject conduct. Thus, the Rules made in exercise of the power in section 31 of the Solicitors Act 1974 must only go so far as is necessary to regulate professional conduct and fitness to practice. There is, of course, conduct such as that which leads to criminal sanction, which whilst conducted outside of the workplace is sufficiently reprehensible to warrant regulatory intervention.
On the question of whether Mr Beckwith’s conduct breached Principle 6 (now Principle 2), the duty to uphold public confidence in the profession, the Court was equally dismissive. It drew an analogy between Principles 2 and 6 which set them apart from the (then) remaining eight. Again, going forward the Tribunal will be invited to look at the Handbook (now the Code of Conduct 2019) and to establish on a case-by-case basis whether the line between “personal opprobrium on the one hand and harm to the standing of the person as a provider of legal services or harm to the profession per se on the other hand, has been crossed”. In this case, as the Tribunal had correctly found that Mr Beckwith had not abused his position of seniority and authority, that line had not been crossed.
The third category of appeal grounds concerned the engagement of Article 8, and the extent to which it should operate to check regulatory supervision of private conduct outside of the workplace. Whilst the Court did not consider it necessary to make a finding about the application of Article 8 to the facts of this case because it had already decided that the Appellant’s conduct did not breach the Principles as defined by the Handbook, it did go on to make important observations about the reach of the regulator into the private life. Such reach extends only where the conduct is demonstrably relevant to professional practice and engages “one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook”.
The Court went on to describe the costs incurred by the SRA as” alarming” and expressed “considerable sympathy for the points that the Appellant has raised” on that issue.
Thus, this important judgment takes some large strides towards providing the kind of certainty needed in the regulation of the conduct of legal professionals outside the workplace in the modern world. Sexual relationships between colleagues are, and always have been, a part of life in the workplace. This is unlikely to change. Many such relationships are perfectly functional and often lead to long-term unions. Some may be more dysfunctional, but nonetheless consensual regardless of rank and status. Consenting sexual activity is a fact of life and ought not to attract regulatory intervention without very good cause.
Those unfamiliar with the facts of this case, or with thoughts constrained by the wider implications for the laudable shift towards greater equality in the workplace, may be alarmed by the outcome at first blush. But they should have no fear as the effect of the judgment is quite clear. Where there is any finding that a position of seniority or authority has been abused this means that Principles 2 and 6 (now 2 and 5) will have been breached. Solicitors cannot abuse their positions by harassing colleagues, junior or otherwise, in or outside the workplace. However, consensual sexual episodes between colleagues where there is no such abuse of position should never be the subject of creeping regulatory intervention. As the Court concluded: “regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit”.
This post originally appeared on the Brett Wilson LLP Criminal and Regulatory Law Blog and is reproduced with permission and thanks.