Trainee Solicitor Wrongly Rebuked By The SRA

A recent decision by the Solicitors Disciplinary Tribunal (SDT) saw a Trainee Solicitor successfully appeal a rebuke by an SRA Adjudicator. What makes the case of Fouracre v SRA significant is that it cited the High Court’s decision in Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin), where a former law firm partner was cleared of sexual misconduct after the Court concluded there was a ‘qualitative distinction’ between behaviour which affects the individual’s reputation and that which affects the reputation of the legal profession.

Background to the decision

The Appellant was a Trainee Solicitor. In December 2018, the Appellant sent a Christmas card to another Trainee Solicitor working in the same firm. The card contained inappropriate references of a sexual nature. The Appellant also gave two presents to the other trainee which were not offensive or sexual in nature. The trainee handed these back to the Appellant. He then sent a text message that would be deemed inappropriate in most workplaces.

This was not the first time someone had complained about the Appellant’s conduct. Before sending the Christmas card in question he had received a warning for making crass comments regarding the office party to some colleagues.

An Investigation Officer at the SRA investigated the matter and formally put the allegation to the Appellant who responded by way of a written statement. Although the Appellant apologised for his actions, the decision of the Investigation Officer was that the Appellant’s conduct was a breach of Principle 6 of the SRA Principles 2011, which required a regulatory sanction.

The SRA’s investigations officer initially recommended a £2,000 fine, which was downgraded to a rebuke by an Adjudicator. The decision notice stipulated that,

“…activities carried out from an office must be broadly interpreted to include conduct and behaviour between work colleagues, including other trainees. This applies unless and until any work relationship moves into the private sphere. This is not such a case”.

The appeal

The Appellant appealed on the grounds that the Adjudicator had erred in concluding that the conduct was in relation to his work life and not his private life. He also argued that when he delivered the Christmas card he had finished work for the day and he was in the process of leaving the building to go home, therefore the Adjudicator had no jurisdiction to impose any sanction. Furthermore, the Appellant argued that the Adjudicator made a mistake in finding that his conduct amounted to a breach of Principle 6 and completely dismissed the findings in Beckwith.

For reference, Principle 6 of the SRA Principles 2011 states:

Principle 6: You behave in a way that maintains the trust the public places in you and in the provision of legal services.

The SDT decision

After reviewing the Appellant’s and Respondent’s arguments, the SDT held that the Adjudicator had erred in her decision, specifically in that she:

“…had taken the wrong approach in her analysis of Beckwith in that she had found that because the conduct complained of had taken place in an office then Beckwith did not apply. This a priori assessment undermined her subsequent reasoning by placing it on an incorrect footing. The Adjudicator stated this clearly at paragraph 6.15 of the Adjudication, stating: “I am satisfied that Mr Fouracre’s conduct was in relation to his activities carried out in the office; then this means that Mr Fouracre needed to meet Principle 6.”

The relevant matters from the Beckwith Judgment stated:

“…neither Principle 2 nor Principle 6 has unfettered application across all aspects of a solicitor’s private life…

“There can be no hard and fast rule either that regulation under the Handbook may never be directed to the regulated person’s private life, or that any/every aspect of her private life is liable to scrutiny. But Principle 2 or Principle 6 may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook. In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor’s profession. Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.”

Further, paragraphs 43:

“43. 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.”

In applying the dicta in Beckwith, the SDT considered 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 as characterised by the Adjudicator. The key question to be addressed, in a proper application of Beckwith was whether the alleged breaches could with reason be closely tied to the guidance set out in the Solicitor’s Handbook.

The Tribunal concluded that although the Appellant’s conduct “had been reprehensible and tarnishing of his own reputation” his conduct did not “realistically” touch upon the standing of the profession.

Comment

This decision illustrates that the SRA must meet the threshold when handing down a penalty for breach of Principle 6. Bad conduct may not be enough, the conduct must be sufficiently extensive and abhorrent to damage the trust and standing of the legal profession as a whole.

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