Boundaries of Professional Conduct (and “Private Life”)

In the matter of a Solicitor v Solicitors Regulation Authority (SRA) [2020] EWHC 3231 (Admin), the appellant solicitor successfully appealed a judgment of the Solicitors Disciplinary Tribunal before the Divisional Court (England & Wales). The Tribunal had found that the appellant (while a partner at an international law firm) had acted inappropriately by engaging in a physical encounter with a younger female colleague at her residence, following a taxi ride home after an evening drinks session with several other people.

The Tribunal appears to have considered that the appellant’s conduct amounted to a breach of the principles to act with integrity and to maintain the trust that the public places in the solicitors’ profession. Importantly, the Tribunal did not find that the appellant that had acted in abuse of his position of seniority or authority. The Tribunal decided that the appropriate sanction was a fine of GBP35,000 and that the appellant should pay approximately sixty per cent of the SRA’s substantial costs.

The court considered that an important issue raised in the appeal was the extent to which it was legitimate for “professional regulation to reach into personal lives of those who are regulated” (para. 34 of the judgment).

Acting With Integrity

The court noted that the requirement to act with integrity extended beyond a requirement to act honestly. The requirement to act with integrity was associated with an adherence to certain ethical standards that were higher than those expected of the general public but which did not go so far as to require professional people to be “paragons of virtue”. However, there was no free-standing notion of integrity in contrast to the commonly understood notion of dishonesty.

While the Tribunal (as the specialist body) was well-equipped to identify a want of integrity it did not have carte blanche to decide what the requirement meant – the requirement had to have identifiable standards. Those standards had to be drawn from the SRA Handbook (equivalent to the conduct guide in Hong Kong). An analysis of the ethical standards that underpinned the requirement to act with integrity was best undertaken on a case by case basis. The court should also be mindful of the fact that the appeal was by way of a review and not a rehearing.

While the appellant’s standards of behaviour may have fallen below those expected of a partner in a law firm, the court considered that the Tribunal was wrong to conclude that he had breached the requirement to act with integrity when it had (on the evidence before it) rejected the allegation that he had acted in abuse of his position of seniority or authority.

Maintaining Public Trust

The court noted that there was a distinction between conduct that undermined the public’s trust in the solicitors’ profession and conduct that was generally regarded as (for example) wrong. Where the distinction lay was a matter for the Tribunal on a case by case basis but it had to apply a principle-based approach. Having concluded that the appellant’s behaviour did not amount to an abuse of his position of seniority or authority over the other person, the Tribunal’s conclusion that he had breached the requirement to behave in a way that maintained the trust of the public in the profession was also flawed. What the appellant did may have affected his own reputation but that was not the same as conduct that affected the reputation of the profession.

Some Takeaway Points

  • The appellant was successful in his appeal because the Tribunal’s reasoning had been flawed. Disciplinary tribunals should give properly reasoned decisions, explaining the basis on which their conclusions are made, failing which their decisions may invite scrutiny by the courts.
  • The summary of the Tribunal’s findings (set out in the Annex to the court’s judgment) makes for some unpleasant reading and should give law firms, solicitors and their staff pause for thought. While (as a general comment) incidents of excessive alcohol consumption are by no means unique to the profession, they do raise concerns. After COVID-19 restrictions are eased, socialising among colleagues will eventually revert to some normality – in the meantime, managing partners and their human resources personnel would do well to check their internal staff policies and grievance procedures. In the age of social media these concerns are amplified.
  • Professional regulators might do well to remember that their jurisdiction to regulate their members’ conduct must be kept within permissible boundaries. Generally, they regulate matters that touch upon the professional practice of their members who, while not expected to be “paragons of virtue”, are held to higher standards than members of the public. In Hong Kong, the focus of similar principles of conduct is on the proper standards of behaviour in a solicitor’s practice or independent business activities (Guide to Professional Conduct, Principle 1) – for example, anything that smacks of dishonesty in the course of a solicitor’s practice or breaches the solicitors accounts rules immediately comes to mind.
  • Solicitors and their employers would do well to remember that some personal behaviour can impact on professional conduct. The distinction between professional and private conduct is not always easy to determine but the court noted (at para. 50 of the judgment) that:

“It is one thing to accept that any person who exercises a profession may need, for the purposes of the proper regulation of that profession in the public interest, to permit some scrutiny of his private affairs; to suggest that any or all aspects of that person’s private life must be subject to regulatory scrutiny is something of an entirely different order.”

Jurisdictions

Partner, RPC

Senior Consultant and Accredited Mediator, RPC

A commercial disputes lawyer with over 35 years' experience, David has extensive experience in handling the defence of professional indemnity, financial lines and other special risks claims as well as advising insurers in relation to such claims.

David has worked on the defence of claims in various jurisdictions including England, Hong Kong, Singapore, Malaysia, the PRC, Taiwan, Bermuda and the BVI.  He also has significant experience in handling regulatory and disciplinary matters.

He has considerable experience providing general risk management advice to professionals such as accountants, solicitors, insurance brokers, surveyors and stock-brokers. 

Most recently, he has been developing a practice as a commercial mediator. David is accredited as a mediator by both the Centre for Effective Dispute Resolution (CEDR) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL).