In mid-June 2023, a former senior solicitor at an international firm was struck off the Roll of Solicitors following one of the longest and most expensive Solicitors Disciplinary Tribunal (SDT) cases in history. It was also the first time a solicitor had been struck off for non-criminal sexual misconduct.

The case concerned a senior solicitor’s sexual fantasy relationship with an 18-year-old female colleague while in a position of seniority. Included among the 70 proven allegations were:

• The teenager was given tasks related to the senior solicitor’s sexual gratification.
• He informed the girl that she should have sexual intercourse with a man she was meeting for a date and send him (the senior solicitor) pictures of the encounter.
• He bombarded the junior staff member with a stream of messages first thing in the morning.
• After interviewing the girl for the role, he described the teenager to a colleague as “the fittest”.

The senior solicitor denied the allegations, stating the relationship was consensual (they had kissed during a night out with work colleagues). He viewed the teenager as a mature and confident adult and said the relationship was one in which she had been ‘actively encouraging and instigating’.

Two other women accused the senior solicitor of misconduct. Some of his behaviour was found to amount to an abuse of conduct and a lack of integrity.

The SDT’s written decision will be published in the next few months. In the meantime, however, this decision should serve as a wake-up call for law firms and other businesses to evaluate their HR policies and procedures concerning sexual misconduct and relationships between senior and junior employees in light of the #MeToo movement which has led to allegations of this kind to be taken much more seriously.

Is there a definition of sexual misconduct in a law firm?

In 2019, a case involving a partner in a Magic Circle firm, created significant media attention as it was the first case to reach the High Court involving allegations of sexual misconduct that did not constitute criminal activity. The Court held that any cases of sexual misconduct should be confined to those that clearly engage the Regulator’s Code of Conduct.

Concerning allegations of lack of integrity levelled at the partner, the Court stated the SDT:

“…cannot have carte blanche to decide what, for the purposes of the Handbook, the requirement to act with integrity means. The requirement to act with integrity must comprise identifiable standards. There is no free-standing legal notion of integrity in the manner of the received standard of dishonesty; no off-the-shelf standard that can be readily known by the profession and predictably applied by the Tribunal. In these circumstances, the standard of conduct required by the obligation to act with integrity must be drawn from and informed by appropriate construction of the contents of the Handbook, because that is the legally recognised source for regulation of the profession.” At paragraphs 31-33.

As you may imagine, the above provides little help and guidance for HR teams trying to draft policies that may lead to an infringement on the private lives of employees.

In September 2022, the SRA published guidance on sexual misconduct. Although the guidance makes clear that consensual sexual relationships will not normally be investigated, it states:

“…a person must not abuse their professional position to initiate or pursue an improper sexual or emotional relationship or encounter with a client, a colleague or anyone else. At all times individuals must make sure that their conduct preserves and justifies clients’ and colleagues’ trust in them, as well as the public’s trust in the profession. That trust is undermined by the exploitation of a professional position for sexual purposes.”

Tips for law firm HR directors when dealing with sexual misconduct allegations

Since #MeToo complaints about sexual misconduct in law firms has increased. Below are some tips for managing such allegations in a way that minimises your risk of breaching regulatory compliance:

• Have clear policies around sexual misconduct that link to the SRA Code of Conduct and guidance on sexual misconduct.
• Ensure the policies are communicated to staff and training is provided on behaviour that crosses the line into the realms of inappropriate.
• Line managers should be trained on how to support complainants and whistleblowers who report allegations of sexual misconduct.
• Encourage employees to minimise their alcohol consumption when attending work functions.
• Take the allegations seriously, even if they date back several years.
• Notify allegations to the SRA and appoint an independent investigator to look into the matter internally.
• Ensure that your internal inquiries do not interfere or compromise any criminal investigation into the matter.

Wrapping up

Claims of sexual misconduct are one of the most sensitive and difficult matters HR and management teams have to deal with. Not only do they pose a risk of regulatory investigations, but they can also have a calamitous effect on a law firm’s reputation. One of the best ways to avoid sexual misconduct allegations in a law firm is to instruct a risk management and regulatory compliance specialist to draft comprehensive policies and procedures and, should a claim be made, call on an independent party to conduct an in-house investigation.

To find out more about any matters discussed in this article, please email us at [email protected] or phone 0121 249 2400.

The content of this article is for general information only.  It is not, and should not be taken as, legal advice.  If you require any further information in relation to this article, please contact 43Legal.