Solicitor struck off for sexual misconduct
In a landmark ruling spanning 82 pages, Oliver Bretherton, an ex-director of multinational law firm Gowling WLG (UK) LLP, was struck off by the Solicitors Disciplinary Tribunal (SDT) for sexual misconduct in the workplace. This followed a 12 day Final Hearing between February and June 2023, with the decision being published on 29 September 2023.
The majority of the allegations against Bretherton related to his sexual misconduct with an 18-year-old legal apprentice, who had just finished her A Levels (Person A). Bretherton was 36 at the time. Allegations were also brought relating to Person B, who was a trainee at the firm and 23-years-old at the time. Person C was also a legal apprentice at the firm, and was 19 years old at the time.
There were 77 allegations against Bretherton in total, which included e-messages, verbal comments and physical acts. These included Bretherton:-
- Discussing sex with Person A;
- Directing Person A to do various acts with sex toys;
- Asking Person A to send him pictures of her in various states of undress and in various sexual positions;
- Kissing Person A on one occasion;
- Touching Person A inappropriately;
- Asking Person A to conceal and/or not disclose his conduct;
- Constantly messaging Persons A and B;
- Making inappropriate comments to Person B about the attractiveness of various colleagues; and
- Putting ice cubes down the back of Person C’s dress on one occasion, making comments as to where it would go.
Bretherton contested most of the allegations, asserting that his relationship with Person A was a “fantasy sexual relationship between two consenting adults”. He stated that to a large extent Person A instigated the conduct. Save for one kiss, the relationship was entirely non-physical. In respect of Person B, he asserted that they were friends, although accepted that from approximately April 2018 he became “overly focussed on quizzing Person B about the nature of her suspected sexual relationship with another legal director within the firm.”
The SDT found 70 acts and/or incidents proved on a balance of probabilities. They found that Bretherton’s behaviour in respect of Person A was sexualised and/or sexually motivated and that in respect of Persons A and B his conduct amounted to an abuse of his position or taking unfair advantage of them. They also concluded that Bretherton acted with a lack of integrity (thereby breaching Principle 2 of the SRA Code of Conduct 2011) in respect of Persons A and B; undermined public trust in him, the profession and in the provision of legal services (thereby breaching Principle 6 of the SRA Code of Conduct 2011) in respect of Persons A, B and C; and took unfair advantage of Persons A, B and C (thereby failing to achieve Outcome 11.1 of the SRA Code of Conduct 2011).
The SDT found that “there existed a demonstrable theme of misogyny directed at young women” by Bretherton and “all of his conduct was plainly in breach of his position of trust as Legal Director within the Firm and their junior positions in the same. Mr Bretherton had sole control and bore sole responsibility for his actions.” The SDT further considered that his subsequent involvement in the firm’s committee dealing with gender inequality and flexible approaches to working “was advanced in an attempt to camouflage and detract from his nefarious misconduct.”
The SDT described Bretherton’s behaviour in respect of Persons A and B as “deliberate, calculated and repeated over a protracted period of time.” In respect of Person A, he “took advantage of her age, naivete and the fact that it was her first job after leaving school.” In respect of Person B, although they mutually considered each other to be friends, “Mr Bretherton’s expectations in that regard were overbearing, obsessive, intrusive and driven by a desire to control.”
The SDT did not consider that Bretherton had shown any insight, and any admissions he had made “were minimal and qualified in circumstances where he either (a) sought to deflect blame onto another or (b) was faced with contemporaneous documentary and oral evidence.”
In the circumstances, the SDT considered that the appropriate and proportionate sanction was striking Bretherton off the Roll of Solicitors.
This is thought to be the first case where a solicitor has been struck off for sexual misconduct where there are no associated criminal proceedings. In other previous similar cases involving sexual misconduct, respondent solicitors were fined for their conduct.
In the case of Hutchings (12393-2022), the respondent solicitor had sexually harassed the complainant, a solicitor and fellow member of the Society of Construction Lawyers, in a nightclub following a Society lunch. He had never met her before, but made inappropriate comments to her regarding her looks and touched her inappropriately, whilst ignoring her repeated attempts to make clear to him she did not consent to his actions. The SDT found his conduct sexually motivated, lacking integrity and in breach of the trust the public places in the individual and the profession. The SDT fined the respondent solicitor £30,000, having reduced it from £52,000 based on his means. He was also ordered to pay costs. In making this decision, the SDT took account of the fact that the sexual harassment took place over a relatively short period of time and was not at the highest end of the scale of severity within the context of sexual misconduct. The SDT also accepted that there had not been a power imbalance or an abuse of position in this case and that there had been no associated criminal proceedings.
In the case of AC (12434-2023), the respondent solicitor, a partner at his firm, during a Christmas lunch sang a song and made gestures in front of and/or directed towards a trainee at the firm (albeit based in different offices) that were sexualised. The SDT found his conduct lacked integrity, was not in a way that maintains the trust the public places in the individual and the provision of legal services and did not encourage equality of opportunity and respect for diversity. The SDT fined the respondent solicitor £23,000 and ordered him to pay costs. In making its decision, the SDT took account of the fact the respondent solicitor’s behaviour was sexual in nature, given his position of seniority it represented an abuse of his power and he knew or ought reasonably to have known that the conduct complained of was in material breach of his obligations to protect the public and the reputation of the profession. It also had regard to the fact that the misconduct was a single episode, comprising of six seconds, there was demonstrable insight shown and open and frank admissions were made to the gravamen of the misconduct.
In the case of Senior (11976-2019), the respondent solicitor, the managing partner of multinational firm Baker McKenzie's London office at the time, behaved inappropriately towards an associate at the firm during a university recruitment event, including causing her to be alone in his hotel room with him, attempting to embrace and kiss her and persisting in such conduct when she indicated that it was not appropriate. This was in addition to other non-sexual allegations against him and other colleagues. The SDT found that his conduct lacked integrity and was in breach of the trust the public places in the individual and the profession. The SDT fined the respondent solicitor £55,000. In doing so, it took account of the fact that he had committed a severe breach of trust in respect of the complainant by abusing his position and the harm caused to her was “devastating”. It also took into account that the incident involved a degree of persistence, albeit over a relatively short period of time, as well as it being an isolated incident. Further, he had shown a degree of insight and had offered what appeared to be genuine apologies.
The decision of the SDT is undoubtedly significant. It shows that the SRA (and consequently the SDT) is taking allegations of sexual misconduct increasingly more seriously and is not afraid to punish those who breach the requirements set out by the Code of Conduct. This is particularly so in this case, where no associated criminal proceedings were brought.
This follows the guidance on sexual misconduct that was published by the SRA in September 2022 and sets out what the regulator considers constitutes sexual misconduct and stresses that such conduct will be taken very serioulsy (see our blog here). The SRA enforcement strategy, updated in February 2023, indicates that the SRA considers such conduct as unsuitable for a financial penalty, indicating that such behaviour is likely to warrant referral to the SDT, with the availability of suspension or strike off.
It would appear from comparison with previous cases there where the behaviour in question relates to a one-off incident, a financial penalty may follow. Persistent and continued behaviour over a period of time is however likely to result in a harsher sanction. Respondent solicitors show insight into their offending behaviour may received a lesser sanction.
The SRA and the SDT are showing their commitment to tackling the issue of sexual misconduct in the workplace. Although strike off is reserved for the most serious of cases, it is clear that the SDT is not afraid to punish someone accordingly when the seriousness warrants such a sanction - even where no criminal complaint has been made.
Articles are intended as an introduction to the topic and do not constitute legal advice.