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Jim Olphert considers the impact of Beckwith on the landscape of professional discipline.
When the Divisional Court decision in Beckwith v SRA  EWHC 3231 (Admin) was handed down some 13 months ago, it caused waves in the field of professional discipline.
As our earlier article explored, Beckwith appeared to give shape and form to concerns regarding the extent to which regulatory investigations could reach into the conduct of solicitors – and other regulated professionals – in the private and personal spheres of their lives. Many felt that this was long overdue given the expansion of how regulators have perceived their ambit in this area. The Divisional Court’s judgment made clear, however, that there was a limit to the reach of regulators, and that a more cautious approach would be required.
This article will consider two cases from the SRA Disciplinary Tribunal, and the new Bar Standards Board BTAS Guidance document, to explore whether Beckwith has had a marked effect on the landscape of professional discipline, or not.
The November 2021 decision from the SDT in this adjudication appeal brought by Mr Fouracre is a significant demonstration of the effect which Beckwith has had in cases involving allegations of sexualised conduct. The headline summary of the allegation given in the SDT’s decision was:
“The Appellant left a Christmas card on the desk of a female work colleague that contained inappropriate sexualised references.”
Further to those references, the Appellant was also alleged to have sent text messages to the same female colleague suggesting that she had been manipulative and that he was hurt by her decision to return the gifts which had been left with the card. These were not sexual in nature.
The adjudicator concluded that such conduct amounted to a breach of Principle 6 of the SRA Principles and decided to issue Mr Fouracre with a rebuke. He successfully appealed that decision.
In its decision, the SDT drew on the following passage from paragraph 43 of Beckwith, which seems destined to be repeatedly mentioned by tribunals in professional discipline:
“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…”
The Tribunal rebuked the SRA Adjudicator, commenting that the “point at issue in this case was not the location at which the conduct occurred, and whether the conduct complained of took place in the office or out of the office” but rather “whether Principle 6 applied to the facts.”
The decision of the SDT supports the contention that the effect of Beckwith is beginning to be felt at the SDT.
This decision from the Divisional Court relates to an appeal by Mr da Rocha-Afodu against the SRA in their use of their disclosure powers under s.44B Solicitors Act 1974 and demonstrates the breadth of circumstances in which Beckwith is being considered.
The facts of the case are, briefly, this. Mr da Rocha-Afodu was instructed whilst a freelance solicitor to act in relation to an application by the client’s trustee in bankruptcy involving a property and ownership of that property by the client’s wife. During the proceedings, the wife was substituted as the applicant in proceedings and Mr da Rocha-Afodu stated that at that point his work for the client on the case ceased. He began to work with the wife, in circumstances which he said were not tied to his practice as a solicitor, providing business advice to her. He appeared to have been paid for this work from the initial retainer despite the conclusion of those instructions.
The SRA began to investigate following a complaint from the original client and sought an order under s.44B which was successful. Mr da Rocha-Afodu appealed, relying on Beckwith to support the proposition that the Court should be cautious to allow interference with something which was said to arise from his private life and not relate to his professional practice.
The Court dismissed the appeal, noting that s.44B had wide application and that Beckwith did not apply as advice given to the wife appeared linked to his professional practice. Whilst the appeal was dismissed, it is significant that Johnson J felt the need to note the link to his professional practice to demonstrate that this was not an instance of overreach into the private life of the appellant.
On 6 January 2022 the Bar Tribunals & Adjudication Service published its revised ‘Version 6’ Sanctions Guidance. Section J of the Guidance was immediately identified by some in the profession for the specific way which the document was drafted and whether, by implication, it might impact on WhatsApp conversations or similar –
“This Group covers misconduct arising from inappropriate communications, the content of which is shared, intended to be shared or it was reasonably foreseeable would be shared with a third party. This Group primarily covers inappropriate use of any type of social media e.g. social network and media sharing sites. However, it is not limited to use of such media and covers all forms of communications, e.g. email and text, where the content is shared. The misconduct can occur in communications made by a barrister in both their professional and non-professional life.” (emphasis added)
The idea of a regulator considering WhatsApp messaging groups or similar should not come as a surprise. In Fouracre, the messages between the parties were directly considered by both the Adjudicator and SDT.
The most significant part of the guidance is the decision by BTAS to reaffirm so resolutely that misconduct can occur on social platforms in both professional and non-professional spheres.
Given the document provides guidance on sanctions, it is perhaps wise to urge some caution on those worried by this approach; the Tribunal would still have to make a finding of misconduct before reaching this guidance.
Considering the quote highlighted in our article a year ago, the BSB appears to have recognised the need to define these boundaries more clearly:
“We have committed to considering and developing, in 2021/22, our approach to the factors and issues we will take into account when assessing whether the conduct of barristers outside the direct sphere of their professional lives should be a matter for regulatory intervention.”
Nonetheless, there will be those that feel that BTAS would do well to heed the warning from Beckwith, that investigations into correspondence within private communication and outside the scope of their professional life may be beyond the reach of the Regulator.
SRA LinkedIn Poll on Sanctions
The impact of Beckwith on findings of misconduct aside, the SRA appear to be moving forward with a review of their sanctions policy in relation to incidents of serious misconduct. As with the BTAS sanctions guidance above, it would appear that the SRA is seeking to strengthen its hand in respect of sanctions handed out after a decision on misconduct is made.
Criticism was levelled at BTAS and BSB in early 2021 after a series of sexual misconduct sanctions were widely derided for being inadequate. Two of my colleagues, James Lloyd and Chloe Birch dealt with this exact issue in an article last year, which can be found here. The SRA’s question posed by the poll asks whether automatic suspension or disbarment should follow a finding of sexual misconduct. It is currently polling at 74% in favour of automatic suspension in all cases of sexual misconduct.
These repercussions from Beckwith continue to be felt, and a consultation announced by the SRA last Friday, 4th March 2022 (‘Rule changes on health and wellbeing at work‘) may even be an attempt by the SRA to mitigate the impact of Beckwith, with the case even being mentioned at page 8 of the consultation.
The consultation addresses concerns previously identified in the SRA’s earlier workplace culture thematic review that revealed undesirable practices in about 25% of the responses received. If the rule changes take place, solicitors will be obliged to report upon their colleagues’ unjust, disrespectful, or otherwise improper behaviour towards other members of the firm, and third parties, currently unprotected, including contractors, barristers, and experts. Whether these proposals are (in part) an attempt to plug the hole caused by the SRA’s setback in Beckwith will be the subject of continued, even trenchant, debate.
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