In my line of work you’re supposed to pretend ideas come out of nowhere but this column was triggered by a well-argued piece by my former parish noting the contrast between senior lawyers let off with fines for regulatory breaches while juniors are routinely struck off. The question in a nutshell is why juniors are banned while senior hands like Gary Senior at Baker McKenzie and Ryan Beckwith at Freshfields Bruckhaus Deringer were been fined for failings linked to sexual advances to staff. Senior was in June handed a £55,000 fine, reopening the debate but the Junior Lawyers Division of the Law Society had the previous month already publicly proclaimed its loss of confidence in the Solicitors Regulation Authority (SRA) following its prosecution of rookie lawyers with apparent mental health issues.
This debate has been much rehearsed in the last two years given cases such as Capsticks’ recently-qualified solicitor Claire Matthews, who was struck off after lying to conceal the accidental loss of client documents. Other notable cases have seen junior solicitors Emily Scott and Sovani James banned despite arguing for mitigation of toxic work cultures and high pressure.
The contrast is striking and highlights again the ambiguities of regulators’ stance in responding to the #MeToo era. This stance over the past 18 months involved a dramatic shift in enforcement strategy from the SRA. This came just after parliamentarians in 2018 criticised the watchdog for a ‘cosy’ relationship with City firms in the context of controversial gagging agreements at the heart of many cases of harassment. Since then the agency has proactively pursued reports of partners’ unwanted advances and told firms to self-report all complaints, a sharp change in direction.
And with Beckwith and Senior providing scalps for the SRA, there is no doubt that attitudes towards harassment and abuse of power are rapidly changing in City law. But as laudable as this shift is ethically and as effective enforcement, such tactics remain controversial in handling cases that would at one end of the spectrum have recently been private matters while, at the other, been subject to criminal prosecution. The Beckwith prosecution in particular made many uncomfortable in the SRA and the Solicitors Disciplinary Tribunal largely side-stepping determination of consent to sexual activity between Beckwith and a junior lawyer given that the issue was obviously material to the case. That fudging may yet come back to haunt regulators given Beckwith’s looming High Court challenge to his £35,000 fine (and £200,000 in costs), though the SRA had made no secret of its hopes that the restructuring lawyer would have been instead struck off.
In Senior’s case, severity was less about the originating incident – a cack-handed, inappropriate pass at a junior – and more around subsequent allegations that the veteran lawyer attempted to influence Bakers’ handling of the complaint. The failure of related cases against Baker McKenzie and several other senior individuals on the latter point left the core point unsatisfactorily unresolved, though Senior himself was found to have attempted to improperly influence the proceedings.
In essence, such cases remain a tightrope act for regulators in terms of identifying complaints serious enough to pursue but not serious enough to merit criminal investigation. This issue has become even more salient given the overhaul of the solicitors’ code of conduct in November, which changed the burden of proof in disciplinary cases from criminal to a civil balance-of-probabilities test. Lawyers’ watchdogs now face the risky prospect of having to consider more cases with a realistic chance of success that will never meet a criminal prosecution threshold. Neither is there much precedent yet established to help regulators maintain their balance as they dash across this ethical high wire.
This is in contrast to the cases facing juniors, which typically impact on clients and in which there is prominent case law, most notably in Bolton v Law Society in 1993, with its conclusion that the public should be able to trust solicitors ‘to the ends of the earth’.
Some maintain that regulators have less room for mitigation in anything touching on clients or dishonesty as foundation principles for the profession and lines that even juniors should recognise they are never to cross. As such, impact on clients, rather than seniority of lawyers, appears to be a greater factor in the apparent disparity of outcomes. Among advisers focusing on disciplinary matters, there is less support for the notion that senior lawyers should be struck off for the kind of #MeToo issues seen so far but more sympathy for leniency to be shown towards juniors under pressure.
Of the prominent advocates for this position, Kingsley Napley regulatory partner Iain Miller makes a convincing case that disciplinary actions in such contexts are too ‘brutal and binary’ allowing for too little nuance.
In particular Miller argues that the SRA and Legal Services Board should use available powers under the Legal Services Act to take into account mental health issues with junior lawyers, particularly when there are credible claims of unsupportive or bullying work environments. Arguing that while attitudes to mental health have changed, Miller concludes that regulators are ‘still applying mid-20th century principles to a set of societal values that have shifted’.
At bare minimum we have surely reached the point where a substantive consultation should be held on the scope for the disciplinary process to take greater account of mental health and work culture; pretty much everything that happens in a law firm occurs in the context of a sharply defined hierarchy.
The SRA had the time and inclination to embark on something as complex and fraught as wholesale reform of vocational legal education; as such, tackling mental health is overdue some serious thought.
Moreover, if legal watchdogs can commit a handbrake turn to enforcement strategy to reflect changing attitudes post-#MeToo, why not perform a similar move for stressed-out juniors who face the end of their entire legal careers for a moment’s mistake? Can struggling juniors not be helped back into the profession, perhaps after a period of suspension?
Times and social conventions are changing. If a more nuanced approach still isn’t workable then the burden of proof is now on the watchdogs to seriously engage in the debate and make a persuasive case for the status quo to endure in all its brutal, binary glory.
See ‘Full disclosure’, for an in-depth assessment of regulators’ efforts at tackling harassment in law