Ruling sends strong message but Nathalie Tidman finds unease over watchdog’s shifting remit
October’s prosecution of Freshfields Bruckhaus Deringer partner Ryan Beckwith highlights awkward truths for the profession as regulators increasingly target claims of harassment and sexual misconduct in law. The ruling on 10 October, the most high-profile scalp yet after a string of embarrassing post-#MeToo disclosures for the UK legal profession over the last 18 months, has already produced a bout of soul searching across the City along with many lurid headlines.
‘There are plenty of people who have done a lot worse than Beckwith. This will be a huge wake-up call for the legal profession,’ notes one City employment lawyer in the aftermath of the case, which saw the restructuring partner hauled over the coals by the Solicitors Disciplinary Tribunal (SDT) for sexual activity with a junior lawyer.
Central to the Beckwith case was the Solicitors Regulation Authority (SRA)’s prosecution for two separate incidents that took place at alcohol-fuelled work events. The first allegation was that Beckwith kissed or attempted to kiss Person A (the SDT imposed reporting restrictions on her identity), over whom he was in a position of seniority; the second claim was that he initiated and/or engaged in sexual activity with the same person.
‘The definition of sexual harassment is unwanted conduct of a sexual nature. The SRA seems to have fudged it by making it about whether Beckwithʼs conduct failed to maintain the trust of the public in the profession.ʼ
Suzanne McKie QC
The £35,000 fine and £200,000 legal costs was not the suspension some were expecting, although the loss of Beckwith’s job (he resigned from Freshfields the morning of the ruling) and question marks over his employability in the City are arguably the real penalties. Beckwith had been on indefinite leave from Freshfields since December.
A full, written judgment will be published by the end of November, at which point Beckwith or the SRA have 21 days to appeal. In the wake of the ruling, the regulator issued the statement: ‘We welcome the SDT’s decision to find that Ryan Beckwith has acted without integrity and in a way that diminishes the trust the public places in him and the profession. On the face of it, given this finding, we are surprised by the sanction. However, we will need to review the Tribunal’s written judgment when it is published before reaching a view.’
Striking a controversial note was the SDT’s assertion that no findings were made in respect of whether Person A consented to the sexual activity, though consent implicitly underpins the allegation, namely in sub-clause 1.2.5: ‘[Beckwith] knew or ought to have known that Person A had not allowed him into her home with a view to sexual activity taking place.’ Furthermore, much of the testimony and cross-examination touched on Person A’s ability to give consent.
This ambiguity has been highlighted by many as signalling an expansion of the regulator’s brief into areas that would once have been deemed either the field of personal relationships or the remit of criminal law. The SRA has itself recently come under intense pressure to take a proactive stance on harassment and lawyers’ roles in drafting unenforceable gagging orders. Last year a high-profile parliamentary committee investigating the use of non-disclosure agreements in harassment cases blasted the SRA’s ‘cosy fireside chat approach’ to policing allegations at major City firms.
Suzanne McKie QC, a sex discrimination and harassment specialist and the founder of Farore Law, says the Beckwith ruling was ‘unsatisfactory’, adding: ‘Regulators, like employers, may wish to avoid the finding of facts, which arguably they should not. The definition of sexual harassment is unwanted conduct of a sexual nature. The SRA seems to have fudged it by making it about whether Beckwithʼs conduct failed to maintain the trust of the public in the profession.’
She added that the thornier issue of consent should and does fall within the regulator’s remit and that it is duty-bound to determine whether a sexual offence has been committed.
The moral and ethical standards of conduct expected from lawyers have long been enshrined in the SRA’s principles, but the regulator has evidently seen the need for a refresher course. In November it will issue new standards and regulations, concentrating its principles into a more succinct list.
Integrity, a key tenet of the Beckwith case, remains a principle in its own right. Partnership and LLP adviser Corinne Staves at Maurice Turnor Gardner notes: ‘The key thing is you are a solicitor all of the time. It extends beyond the workplace. There are clear standards of behaviour that are expected both in work and outside of work.
‘There has been a shift over the last 20 years. The onus is now on the regulated individual to decide how to comply. The SRA is clear about the outcomes that are expected and the individual is responsible for deciding how to achieve those outcomes. The SRA is clear that it believes an ethical set of values should be coursing through the veins of every solicitor.’
The SDT will also from 25 November move from a criminal to a civil standard of proof, bringing it in line with the majority of professional regulators. The shift will replace ‘beyond reasonable doubt’ with the less stringent ‘balance of probabilities’ test. The move will make it easier to secure rulings against solicitors accused of misconduct.
‘The key thing is you are a solicitor all of the time. There are clear standards of behaviour that are expected both in work and outside
of work.’
Corinne Staves, Maurice Turnor Gardner
Either way, the Beckwith case looks to be heralding a sustained regulatory push against allegations of harassment, not to mention a growing willingness of watchdogs to police major City law firms, where it had until recently heavily focused enforcement on high-street solicitors.
One City employment lawyer believes this case is only the beginning. ‘As a law firm leader, when it hits the fan, the last thing you want is your name associated with it. The consequence of #MeToo is it’s not just the perpetrator, there is also a risk to the decision-maker of the firm. That’s going to have a huge impact. People will continue to dob others in to protect themselves and the firm. That will be more systematically significant.’
In December, the industry will be scrutinising how such forces play out during the prosecution of Baker McKenzie’s former London head Gary Senior over allegations that he sought to ‘initiate intimate activity’ with a junior member of staff in 2012 and improperly sought to influence Baker McKenzie’s investigation of a related complaint. Allen & Overy employment partner Mark Mansell will also appear before the tribunal in December to face claims related to his role in drafting a controversial non-disclosure agreement for film producer Harvey Weinstein back in 1998.
While the boundaries of scope for legal regulators may remain open for debate, the case will likely lead the profession to clamp down on abusive behaviour, with many arguing the deference often accorded to partners makes law firms prone to such excesses. There will also be more pressure for firms to have effective frameworks to regulate sexual relationships between staff members, especially involving partners or managers and junior staff.
More than two years after revelations regarding Weinstein stoked a sustained debate on the treatment of women in the workplace, it is clear the aftershocks will be playing out in the legal profession for some time to come. LB
nathalie.tidman@legalease.co.uk
The Beckwith hearing – The main points
The case referred by the Solicitors Regulation Authority (SRA) to the Solicitors Disciplinary Tribunal (SDT) in June 2018 focused on two separate claims. The hearing began on 30 September, taking evidence for seven days, with the ruling issued on 10 October.
The first incident, which was found unproven by the tribunal, was alleged to have taken place after a lavish all-day celebration in early May 2016 that began at Le Manoir aux Quat’Saisons in Oxfordshire, held for Freshfields Bruckhaus Deringer’s restructuring team to mark the end of a major instruction. Person A (now 30 but 27 at the time) claimed that, back in a London bar, Beckwith put his arm around her and tried to kiss her on the lips. Person A, then an associate in the team, claimed the kiss was ‘neither wanted nor invited’.
The second incident, found to be proven by the tribunal, took place after impromptu after-work drinks at The Harrow pub near Freshfields’ Fleet Street offices in July 2016. Beckwith bought an ‘unusual and excessive’ amount of alcohol, the SDT was told.
Beckwith shared a taxi back to the flat of Person A who had consumed ‘six or seven’ glasses of wine and Jägerbombs. The SRA’s counsel, Red Lion Chambers’ Riel Karmy-Jones QC, told the tribunal that Person A had been more drunk that night than ever before, so much so that she ‘did not or could not consent’ to the sexual activity that later took place.
Beckwith, represented by Alisdair Williamson QC of Three Raymond Buildings, maintained that Person A’s version of events was ‘fabricated’ and that she instigated a ‘passionate kiss’ at the pub beforehand and ‘flirtatious touching’. The 41-year-old restructuring specialist has never denied that sexual activity took place but claimed it was consensual. Further, he disputed that Person A was intoxicated to the extent her judgement was impaired, and her claims that her intoxication and vulnerability would have been apparent.
Beckwith admitted the episode was personally inappropriate because he is married but that it was not inappropriate for a senior and junior person to kiss, adding: ‘I’m sure this thing happens all the time across the City with no repercussions at all.’
For Beckwith, the immediate repercussions were a £35,000 fine and £200,000 in legal costs for the tribunal’s findings that he breached principles two and six of the solicitors’ code of conduct, requiring solicitors to ‘act with integrity’ and ‘behave in a way that maintains the trust the public places in you and in the provision of legal services’.
Karmy-Jones said on the first day of the hearing that the sexual activity was ‘toxic, harmful and damaging for Person A, himself, the firm and for the wider profession as a whole’. Williamson ended his remarks by describing Beckwith as ‘a good man who has been broken by this process’.