By Emily Caulkett-
The Solicitors Regulation Authority today gone into great detail to highlight what constitutes sexual misconduct by solicitors, after a surge of complaints in the past five years.
Under the direction of SRA boss, Paul Phillips(pictured ) , a comprehensive set of guidelines have been published to address increasing complaints of sexual misconduct among solicitors, addressing grey areas that sometimes make it difficult to conclusively identify some conduct that those who are culpable may sometimes escape accountability.
Plying the opposite sex with alcohol, sexual compliments, and intimidating conduct by senior solicitors who can abuse their position of power in coercing a former partner into continuing a relationship they may for instance want to terminate, are all among a list of boundaries set by the regulator to raise the standard of ethics and integrity in the legal profession. Strict guidelines were also applied to sexualised language and sexualised touching in the work place.
Phillips, previously the Deputy Chief Executive and Chief Operating Officer of the General Medical Council (GMC) where he was responsible for leading all corporate work programmes, as well as delivering all the organisation’s core regulatory work presided over the watertight guidelines.
They are designed to ensure no room for excuses from future offenders who fall foul of those clearly defined details.
In the past three years, the regulator has received 251 reports made to the regulator about alleged sexual misconduct at law firms, compared with 30 in the preceding five years. The SRA has 117 related ongoing investigations into potential breaches of its code of conduct.
The regulator today published a comprehensive guide to behaviour which is states would warrant an investigation and what aggravating factors would lead to a prosecution. The guidance covers a whole range of areas, including workplace comments, consent, vulnerability and seniority of complainants, alcohol consumption and instances where a complainant has been touched.’
Under the guidelines, 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.
The closer any conduct or alleged wrongdoing touches realistically upon the individual’s practice or reflects how a solicitor might behave in a professional context, the more likely it is that the conduct may impact on the individual’s integrity or trust in the profession.
Sexual misconduct might not directly relate to an individual’s work as a lawyer or the work being done by a firm but have a connection to practice, their role, and their position in relation to the recipient of the behaviour (example 2 below).
The SRA said that some sexual misconduct allegations totally removed from legal practice might still be so serious that they damage public confidence in the profession, thereby falling within the remit of professional misconduct. Examples include criminal convictions for sexual offences as well as serious non-consensual sexual touching even where no criminal proceedings are planned, current or concluded.
The new guidance says that while it is more likely that alleged wrongdoing in the workplace is more likely to affect an individual’s integrity or trust in the profession, it will investigate behaviour outside the work environment.
The guidance notes: ‘Sexual misconduct might not directly relate to an individual’s work as a lawyer or the work being done by a firm but have a connection to practice, their role, and their position in relation to the recipient of the behaviour.’
Intentionally Touching Of Bum Or Breast
Under the guidance says that someone being overly friendly and putting an arm around someone’s waist ‘might be objectionable to an individual but is not necessarily serious enough for us to take regulatory action’, whereas intentionally touching a bottom or breast would be considered more serious.
Aggravating factors were also detailed to include any threat not to report the conduct; any suggestion that junior staff wear certain clothes; the use of future work prospects as an inducement or threat; giving sexualised gifts such as sex toys; and comments about people’s sex lives.
The guidance also states that an aggravating issue could include ‘intentionally plying someone with extreme or significant quantities of alcohol which might suggest it is being done to lower both physical and emotional resistance’. Being drunk, it is noted, is never a defence to an allegation of sexual misconduct.
The SRA also distinguishes between what it describes as ‘flirting, banter or even complimentary’ comments and more distasteful sexualized words spoken in the workplace. Comments such as ‘You are sexy’ or ‘I find you attractive’ will be looked at with regard to whether they were ‘abusive or simply awkward.
Conduct so serious that offend public trust and confidence irrespective of context will generally be a regulatory issue worthy of investigating. A wide criteria relevant to an assessment of gravity will be informed by all the circumstances of the case, including the proximity to practice as well as a number of considerations, the regulator said.
Touching accompanied by sexualised language would often merit an investigation if reported, with the place of touching, level of intimacy and duration , all relevant factors to be considered.
Acts of threats, malice, coercion, pressure, manipulation, influence and intimidation, all rank high on the list of factors that constitute misconduct.
Intentionally plying someone with extreme or significant quantities of alcohol which might suggest that it is being done to lower both physical and emotional resistance while also reducing their capacity to clearly recollect events
use of internships and traineeships, future work or access to clients (or implicit/explicit offers of such) as inducements, or the threat of their withdrawal, to manipulate.
”The most serious comments that constitute misconduct were said to be overtly sexually specific remarks about sexual activity or intimate parts of the body. If rebuffed, the comments may be aggravated by direct or veiled references to the speaker’s seniority and/or the imprudence or futility of any complaint”, the SRA said.
Sexually offensive, derogatory or explicit comments about a complainant can also be made to (or overheard by or copied to) third parties. Of critical importance is the nature and context of any sexualised remarks, including the demeanour of the perpetrator and the effect on any audience. A particular context can transform what would normally or otherwise be a neutral, ambiguous, or injudicious comment into something improper and offensive”.
Paul Philip, chief executive of the SRA, said: ‘We take reports of sexual misconduct seriously. These can be sensitive and difficult issues and we want to be clear about our expectations, not least for firms, as people often come to us because they are dissatisfied with the way their firm has dealt with their concerns.’