Professional boundaries: the ongoing regulation of solicitors’ private lives

Last week it was reported that the Solicitors Regulatory Authority (SRA) received more complaints of sexual misconduct between 2023 and 2024 than in the previous four years combined. However, the question of the extent to which a professional regulator should be able to scrutinise the sexual behaviour of professionals outside of the workplace has raised its head again in the recent judgment of the Solicitors Disciplinary Tribunal (SDT) in Solicitors Regulation Authority v Lewis Brady [12660-2024]. The judgment also raises the related question as to whether the SDT is an appropriate forum to hear criminal complaints of first instance when they arise outside of the workplace.

Lewis Brady was an Associate Solicitor at a Firm where he worked with Person A (a paralegal) and Person B (a managing associate). He had around three years post-qualification experience and did not work directly with Person A or Person B and had no managerial or other responsibility over either. The facts suggest that Brady, A and B were good friends for some time and socialised very regularly together after long hours in the office – not an uncommon scene in the world of busy young legal professionals. B was married, but there was evidence of approximately 15,000 messages exchanged between her and Brady over the relevant period. It was Brady’s case that both A and B were flirtatious towards him and this was seemingly supported by contemporaneous and other evidence.

Person A made seven allegations which amounted to sexual touching against Brady but only one was found proven. Person B made two allegations of a similar nature and one was found proven. The findings were said to amount to breaches of SRA Principles 2 and 5 (public trust and integrity).

The one allegation made by Person A that was proven against the Respondent took place at the Beduin nightclub in London. There had been a firm event earlier in the evenng between 5.30 and 7.30pm. Following that some staff went to a restaurant called Apulia for dinner, then onto Karaoke box and finally to Beduin. On Person A’s account, she arrived at Beduin at 1.00am and left at 3.10am. She complained that during the time at Beduin the Respondent touched her bottom. The Respondent said that all touching between them was invited and consensual.

The allegation made by Person B that was proven took place in a black taxi five months after the above events. There was a meal at a restaurant which was apparently paid for by the firm. A group including the Respondent, Person A and Person B went on to the Blues Kitchen in Shoreditch where they arrived about 11.00pm. They left the club around 1.00am and went to another cocktail bar. B and the Respondent later decided to share a cab home. B later alleged that the Respondent touched her breast on two occasions. It was the Respondent’s case that prior to getting into the taxi Person B had said: “do not ignore my arse I work so hard on it and it doesn’t get any attention” and she had placed her head in his crotch and stroked his inner thigh. The Respondent claimed that any contact between them (sexualised or otherwise) was consensual and invited. Five days later she went to Paris with the Respondent and another couple.

Shortly, thereafter her and Person A went to the firm and reported him for misconduct.

In addition to factual challenges, the Respondent had argued that the SDT had no jurisdiction over the allegations because they were wholly unrelated to the workplace and consequently the SRA’s Principles were not engaged (it being unrelated to his work as a solicitor) and further or alternatively it breached his Article 8 right to respect for a family life under the European Convention on Human Rights as the conduct was part of his private life. In support of these contentions, he relied on the leading case of SRA v Beckwith [2020] EWHC 3231.

The SDT rejected this submission on the following basis:

“Unlike Beckwith, where the Tribunal approached matters on the basis that sexual conduct for consideration was consensual, this case required the Tribunal to determine, in relation to certain allegations whether the conduct in question occurred at all. For other allegations, the Tribunal had to assess whether the admitted conduct was consensual.

While it was argued by the Respondent that the social context in which the allegations arose was distinct from legal practice, as they occurred outside the workplace setting and did not engage any of the standards of behaviour set out in the Principles or the Code and therefore did not raise a regulatory issue, the Tribunal reached a different conclusion. In making its determination, it conducted a careful review of the relevant case law presented to it, along with a consideration of the SRA Guidance on Sexual Misconduct, published on 1 September 2022. The Tribunal found that the allegations of non-consensual touching in this case, at a minimum, were capable of engaging the Principles of public confidence in the profession and integrity, if not the standards of behaviour implicit in the Principles and the Code for Solicitors”.

Thus, the SDT sought to distinguish Beckwith on the basis that it was tasked with considering whether allegations of non-consensual touching were proven whereas in Beckwith the sexual activity was consensual. The Respondent contended that all touching (if it took place as alleged) was consensual.

Of course, non-consensual sexual touching is a crime contrary to section 3 of the Sexual Offences Act 2003 (sexual assault). There is no suggestion that either complainant reported the matter to the police, and in fact, Person B went to Paris with the Respondent the weekend after she said he had assaulted her. If they had reported the Respondent’s alleged conduct to the police then the SRA would have been obliged to await the outcome of any criminal prosecution prior to considering regulatory action.

In Beckwith, the Administrative Court (presided over by the President of the Queen’s Bench Division and Judge in Charge of the Administrative Court) said as follows of precisely the same Principles (although then 2011):

“However, both Principle 2 and Principle 6 also cover ground beyond that covered by the other eight principles. In the context of Principle 2 what that ground is, is identified by construing the contents of the Handbook – i.e. the body of rules made in exercise of the power at section 31 of the 1974 Act… Approaching Principle 2 in this way keeps it within foreseeable boundaries by attaching the obligation to act with integrity to matters that touch upon professional practise as a solicitor.

We consider the same general approach must also apply when determining the scope of Principle 6. The content of Principle 6 must be closely informed by careful and realistic consideration of the standards set out in the 2011 Code of Conduct. Otherwise Principle 6 is apt to become unruly. There is a qualitative distinction between conduct that does or may tend to undermine public trust in the solicitor’s profession and conduct that would be generally regarded as wrong, inappropriate or even for the person concerned, disgraceful. Whether that 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, will be a matter of assessment for the Tribunal from case to case, but where that line lies must depend on a proper understanding of the standards contained in the Handbook”.

Thus, the Court was setting a clear boundary in which the SRA must operate – namely that the conduct complained of must relate to his obligations as a solicitor (in this context towards others). That was directly linked to whether there had been an abuse of position or some other breach of the Code of Conduct. In Beckwith:

“ the Tribunal had already concluded that the Appellant’s conduct did not amount to an abuse of his seniority or authority over Person A. On the application of Principle 6 to the facts of this case, that conclusion is a critical conclusion and, as we have already said, on the facts of this case it was a conclusion that was clearly correct. Conduct amounting to an abuse by a solicitor of his professional position is clearly capable of engaging Principle 6. But, as the Tribunal concluded, that was not this case”.

In the case of Lewis Brady, the SDT also ruled there had been no abuse of position. With respect to Person A it said: “The Respondent did not abuse his position, as an Associate lawyer or take unfair advantage of the Respondent, in relation to his conduct towards Person A on 20 October 2021”. Regarding Person B “the Respondent did not abuse his position or take unfair advantage in relation to his conduct towards Person B on 25 March 2022, given that they held similar professional status within the Firm and worked in different teams”. Nevertheless, the SDT still found the proven allegations amounted to breaches of the same Principles.

The Respondent was suspended for a period of 12 months and ordered to pay over £98,000 in costs to the SRA.

As in Beckwith, the SDT found there had been no abuse of position in this case. The SDT distinguished Beckwith on the basis that it had made a finding of non-consensual touching and that, in itself, was sufficient to engage the Principles in spite of the fact there was little nexus to the workplace bar the parties’ shared employment.

Unfortunately, the SDT did not elaborate further other than to make reference to the SRA Guidance on Sexual Misconduct which, as the Respondent had pointed out, does not have any statutory foundation.

It is a matter of considerable concern that the SDT has established jurisdiction by effectively making findings that criminal offences of this nature had taken place outside of the workplace. It is one thing to scrutinise theft from client account, it is quite another to be tasked with deciding on the question of whether sexual touching was consensual in the back of a taxi cab.

The SDT’s powers are insufficient to provide the necessary safeguards to any Respondent facing such allegations for the first time. The SRA has no statutory powers to assist with balanced investigation nor obligation to obtain relevant material. For example, in this case it is clear that it fell to the Respondent himself to serve thousands of relevant media messages to set out the context of his relationship with A and B before they decided to report him to the Firm.

The standard of proof, applied since 2019, is now a civil one and the statutory protections availed by defendants in criminal proceedings are simply not present in Tribunal proceedings. The question as to whether the conduct was consensual should be a matter for the police to investigate in the event that such complaint is made to them. As the High Court decided in Beckwith the conduct of private lives is not a matter for professional regulation unless its context touches on his professional practise as a solicitor.