Does it matter that a regulatory rulebook contains professional principles that are headlines only and have no detailed content? To what extent is it ok for those engaged in professional discipline to be interested in the private lives of professional people? These are the two main substantive questions (although not framed in that way…) in a recent High Court decision on solicitors and ‘integrity’.
On 27 November 2020 the High Court handed down a judgement in Beckwith v SRA  EWHC 3231, an appeal by Ryan Beckwith (a former Freshfields partner) against a ruling of the Solicitors Disciplinary Tribunal (SDT) of 30 January 2020 which related to events between Beckwith and a (at the time) Freshfields associate in his team. This is how the High Court framed the first instance decision:
In summary the Tribunal found that what it described as a “sexual encounter” had occurred between the Appellant and Person A during the evening of 1 – 2 July 2016. Earlier that evening the Appellant and Person A had been part of a group drinking in a pub near the Firm’s London office. Person A was an associate solicitor at the Firm in its Restructuring and Insolvency Department, the same department the Appellant worked in. In June 2016 Person A had resigned from her employment with the Firm following an offer of employment with another law firm. Her last day of work was 8 July 2016. The drinks on Friday 1 July 2016 were in anticipation of her departure.
The SDT had fined Beckwith £35,000 for breaches of the SRA Handbook (and specifically two Principles in its Code of Conduct) and awarded the SRA costs of £200,000. Richard Moorhead blogged about the SDT case here. He said
It may seem churlish to demand it, but as the case is to be appealed, we may yet find out that the SDT’s reasons, or lack thereof, come back to bite them. The judgment’s lack of clear and persuasive reasoning ill-serves the gravity of the situation.
As we shall see, Richard was right. The case in the High Court was not about the findings of fact that the SDT had made. Those were not disputed. Instead, the case was a challenge to the findings as to breach of the SRA Handbook (and on the costs award).
I realise this is a long blog, so let me do my four main points here:
- This is an odd case and goes beyond was needed to dispose of the issues in the court below. That being said, the SDT did a very poor job with its decision. It’s… random.
- The High Court seems to think that professional principles only exist by reference to and to be read against the detailed rules in the Handbook. This is plainly (and legally) wrong. It goes against the SRA’s practices/whole regulatory approach, the entire scheme of the Legal Services Act (which the case never mentions…) and its antecedents, and a gang of cases on ‘duty to the court’ style duties which come from and are situated in decades and decades of ideas about and work on professionalism. I smell an appeal.
- It’s also very clear that the High Court doesn’t like what it sees as professional regulators sticking their nose into the personal lives of lawyers. I mean, I don’t necessarily disagree… But this wasn’t a case about me being mean to my neighbours. It’s about a sexual encounter between a partner and an associate in his team following after work drinks. Where do we draw the line?
- Reading this case I feel… dissatisfied. I leave still not knowing what integrity means and with the sense that I may never know. I get this feeling a lot reading cases on lawyers. As a body of jurisprudence, they’re sorely lacking.
Professional Principles: What Does It Mean to Have Integrity?
The first bit of the case is a set of claims by Beckwith about ‘professional misconduct’. They can be ignored for now and the High Court didn’t take to them. This was not, however, the end of the story. There was still the issue of whether “whether the misconduct found by the Tribunal to have occurred engaged Principle 2 and/or Principle 6 both in qualitive terms (the nature of the conduct proved) and in terms of the scope of application of those Principles (conduct occurring outside work)” (para 25).
The 2011 SRA Handbook had, at its front, a list of 10 Professional Principles (this regulatory framework has now, of course, been overtaken by the SRA’s Standards and Regulations which also contain professional principles… but this time only 7 of them). Those 10 Principles were “mandatory” and applied to all solicitors at all times. They covered a wide range of matters, including the rule of law, the client’s interests, independence, respecting the regulator, and issues of equality and diversity. These 10 principles were not ranked, and the SRA made it clear that no one principle takes precedence. Principle 2 required solicitors to “act with integrity”.
I’ve written a fair bit about the SRA’s Handbook and its professional principles: about how lawyers (COLPS and law firm in-housers aside) don’t use them or think about using them; about how lawyers can’t remember the professional principles; about how (some) lawyers have a worrying lack of ownership and embodiment of some of them. And one of the things I think the SRA could do better is to give a bit of life to those principles; to tell practising solicitors what they think the principles actually mean. The regulator does publish various reports – like Walking the Line – and have toolkits etc; but they’re all a bit… vague (and also – and importantly for what I am about to talk about shortly – they sit outside the Handbook). As my friend and co-author Emma Oakley and I have written elsewhere:
The consequence of this lack of regulatory detail is that the individual solicitors who are intended to be governed by [professional principles in the SRA Code of Conduct] are also left free to determine what this amounts to in practice, something which, for a variety of reasons, they may be poorly positioned to judge, let alone effectively act
What the SRA hopes is that by not being explicit on exactly what the principles mean, then this will encourage those in practice to go: ‘Huh, I wonder if this is an issue of integrity? What would that look like in this context? How close to the line am I?’ and so on – the fact that decades of empirical evidence suggests that lawyers only rarely (read: almost never) actually engage in this sort of reflexivity seems to have passed the regulator by.
Anyway, back to the case. My short side-bar was because, as someone who researches lawyers and who care about professionalism and the content of professional principles, I was hoping that this case might have added a bit of flesh to the gnawed and unsatisfyingly grisly bone of the Handbook drafting. But it did not. Instead, the High Court trots out what Jackson LJ said about integrity in Solicitors Regulation Authority v Wingate  1 WLR 3969. Namely, Jackson LJ says that integrity is more than honesty, that integrity is hard to define, that it’s a shorthand for the “high standards” that come with various forms of professionalism, that it’s about actions as well as words, that (at para 100 of Wingate) “integrity connotes adherence to the ethical standards of one’s own profession”, but also that (para 102) a duty of integrity “does not require professional people to be paragons of virtue”.
The High Court in Beckwith says (para 30) that there are “three points of principle” from Jackson LJ’s framing in Wingate (an odd framing, but there you go): integrity is about the ethical standards of a profession, it’s about professionalism meaning (sometimes) higher standards than would apply to non-professionals, and the “third is that a regulatory obligation to act with integrity “does not require professional people to be paragons of virtue”.” It’s at this point, I think, that those who had come to this case cold would have realised that the court was going to find for Beckwith. Why else say that there’s no need to be “paragons of virtue” in a case involving sex unless your conclusion is going to be that what went on was ok-enough?
Integrity and ‘Three Points of Principle’
The High Court goes on to look at each of these “three points of principle” in turn. On the first, it says:
So far as concerns the first of the principles we have identified from the judgment in Wingate – adherence to the ethical standards of the profession – the Handbook does not contain any discrete statement of ethical standards, but describes the 2011 Principles themselves (including the obligation to act with integrity) as embodying “… the key ethical requirements on firms and individuals who are involved in the provision of legal services”. Considered in isolation from the remainder of the Handbook, this runs the risk of circularity because there is no fully-formed legal notion of lack of integrity that could be applied in the same way as the received notion of dishonesty.
I find two things interesting here. First, I am glad that it noted the lack of content (i.e. “no fully formed legal notion”) in the Handbook that I’ve spoken to above. Will the SRA now do something about this? Create some guidance about its own professional principles and/or a statement of ethical standards? I think not. My feeling is that, after Looking to the Future (the SRA’s recent big regulatory revamp), there is little appetite to engage in anything more. But I hope I am wrong. The second interesting thing here is the lack of reference to the SRA’s Competency Statement, which does have a bit more content when it comes to what’s expected of solicitors and their ethicality. (Quite literally) The first thing the SRA says a competent solicitor should be able to do is to “act honestly and with integrity”. There’s also no mention of the Legal Services Act 2007… which is puzzling.
The High Court then comes to say this (at para 33), which I found a bit hard to parse on first blush:
The standards that give substance to the obligation to act with integrity must themselves be drawn from some legitimate source – they must stem from legitimate construction of the rules made in exercise of the section 31 power. To the extent that the obligation to act with integrity includes a requirement not to act dishonestly, the judgment in Wingate is authority for the proposition that properly interpreted, the Handbook imports the well-known legal definition of what is dishonest. So far as the requirement to act with integrity extends further, we accept and agree with the point made in Wingate that the Tribunal is a body well-equipped to act in the manner of a professional jury to identify want of integrity. Yet when performing this task, the Tribunal cannot have carte blanche to decide what, for the purposes of the Handbook, the requirement to act with integrity means. The requirement to act with integrity must comprise identifiable standards. There is no free-standing legal notion of integrity in the manner of the received standard of dishonesty; no off-the-shelf standard that can be readily known by the profession and predictably applied by the Tribunal. In these circumstances, the standard of conduct required by the obligation to act with integrity must be drawn from and informed by appropriate construction of the contents of the Handbook, because that is the legally recognised source for regulation of the profession.
Let’s break this down into bits. First we have this: “The standards that give substance to the obligation to act with integrity must themselves be drawn from some legitimate source – they must stem from legitimate construction of the rules made in exercise of the section 31 power”. What is this saying? Is this saying that the Handbook is to be read against the Solicitors Act 1974, such that any inconsistency (and/or over reaching?) in the Handbook is problematic? I think it is, and that makes sense in a standard hierarchy of norms sort of way (i.e. s31 of the Act grants the power to make “rules as to professional practice, conduct and discipline” and those rules have to be read against s31). And s31 doesn’t mention integrity (though of course the Legal Services Act 2007 does – again (oddly) this isn’t referred to by the High Court). Also, the Handbook is NOT the only “legally recognised source for regulation of the profession”. That is factually and legally incorrect. There’s also the LSA, things outside the Handbook but within the SRA’s purview (like the Competency Statement), and a whole gang of tortious, fiduciary and other common law duties.
Next we have this: “To the extent that the obligation to act with integrity includes a requirement not to act dishonestly, the judgment in Wingate is authority for the proposition that properly interpreted, the Handbook imports the well-known legal definition of what is dishonest.” What I read here is this: the Handbook doesn’t have content on what the professional principles mean, but Wingate has provided some content and that’s (of course) fine. And then we have this: “the Tribunal cannot have carte blanche to decide what, for the purposes of the Handbook, the requirement to act with integrity means.” This I find problematic. Not the idea that a tribunal cannot do whatever it likes, but the implication that this particular tribunal cannot engage in what I see as fairly basic (common law adjudication compliant) textual interpretation of various provisions which need a bit of explanation and expansion. Given such a sweeping statement by the High Court it would then have been helpful had the next few paras set out (super clearly) the limits of the SDT’s powers to act. This doesn’t happen. Instead, the High Court goes on to say this at para 34:
The Tribunal cannot and does not have liberty to act outside the rules made under section 31 of the 1974 Act. Those rules must be construed coherently; the standards that emerge must be sufficiently predictable. This approach to the meaning of the requirement to act with integrity facilitates a principled approach to the important point raised by the circumstances of this appeal: the extent to which it is legitimate for professional regulation to reach into personal lives of those who are regulated.
Ah, here it is. Here’s the thing that’s really animating the High Court. That last line: when is it ok and not ok to “reach into the personal lives of those who are regulated”? To do this, to decide if there has been a breach, the High Court tells us (para 35) that the SDT needs to engage in a “case by case” exercise in which it identifies “by reference to the contents of Handbook (in all likelihood, primarily, the contents of the 2011 Code of Conduct) whether and if so what ethical standards emerge that are relevant to the misconduct alleged“. In this particular appeal, the High Court tells us (para 36) that, “We consider the relevant part of the 2011 Code of Conduct to be the part titled “You and Others”, and in particular Chapter 11, “Relationships with Third Parties”.” Let’s take stock of what has just happened in these few paras. The High Court obviously doesn’t like the fact that the professional principle of integrity: (a) doesn’t have content in the Handbook; and (b) that the SDT might be engaging in a bit of law-making/law-expanding without reference to or thinking about s31; and (c) the Court is especially hesitant about rule-making which impacts on professionals’ personal lives. And so the High Court is instead going to look at the facts in Beckwith by reference to the detailed rules (Chapter 11) of the Handbook. I think, with respect, this misses the ENTIRE POINT of professional principles; a debate the High Court didn’t get into. I’ll come back to this at the end of this blog.
Chapter 11 and Unfair Advantage
Let’s come back to the meat of the decision. At para 36 the High Court says this:
The material obligation arising from Chapter 11, which on the facts of this case informs the content of the requirement to act with integrity, is the obligation, whether acting in a professional or personal capacity, not to take unfair advantage of others. The Tribunal’s finding that the Appellant had not acted in abuse of his position of seniority or authority puts the present case outside that requirement. What the Appellant did was, as the Tribunal concluded, inappropriate. But it was not conduct which on a proper reading of the 2011 Principles was capable of being characterised as showing a lack of integrity.
And then this at para 38:
Given the detailed findings the Tribunal had made as to the events of the evening, we consider the Tribunal was clearly right to conclude that no abuse of authority had occurred. However, the Tribunal then fell into error by categorising those events as it had assessed them, to be a breach of Principle 2. In the context of the course of conduct alleged in Allegation 1.2, the requirement to act with integrity obliged the Appellant not to act so as to take unfair advantage of Person A by reason of his professional status. On the findings made by the Tribunal, that had not happened. In the premises, the Tribunal’s final statement that the Appellant had “fallen below accepted standards” is not coherent. Whatever “standards” the Tribunal was referring to as ones which identified what, in the circumstances of this case, the obligation to act with integrity required, were not ones properly derived from the Handbook.
And then this at para 39:
There is one further matter to note. Our analysis is premised on the need to define the content of the obligation to act with integrity, which might otherwise be an obligation at large, by reference to the standards set out in the Handbook. Confining the obligation in this way preserves the legitimacy of the regulatory process by maintaining the necessary and direct connection between the obligation to act with integrity and rules made in exercise of the power at section 31 of the 1974 Act. Yet the approach we have taken in this case is not any form of permission to expand the scope of the obligation to act with integrity simply by making rules that extend ever further into personal life. Rules made in exercise of the power at section 31 of the 1974 Act (in the language of the Handbook, the “outcomes” and the “indicative behaviours”) cannot extend beyond what is necessary to regulate professional conduct and fitness to practise and maintain discipline within the profession.
I am finding these three paras hard to unpick. It may be that they usefully require and need the sort of dark room/cold flannel hard-thinking that the pandemic has taken away from many of us (me for certain). This is what I am struggling with:
- Why wasn’t the conduct “capable of being characterised as showing a lack of integrity” (para 36)? The High Court doesn’t clearly say. Not really. Is it that the Court is saying that because the SDT found that Beckwith hadn’t abused his position or seniority in the firm (and the High Court thought the tribunal “clearly right” on this) and because there were no arguments as to lack of consent, then there was no unfair advantage taken and thus nothing to support a claimed breach of integrity? I think that’s what’s being said. As will now become apparent, I am not sure I agree with this. I think we need to know more about the substantive content of integrity absent Chapter 11 (and the rest of the detailed rules).
- Because the High Court has decided that the professional principles have to be read via/through the Handbook rules, this is part of a process which leads to the following conclusion: “the requirement to act with integrity obliged the Appellant not to act so as to take unfair advantage of Person A by reason of his professional status“. I don’t think that’s right. What the High Court sees as one obligation I see as two obligations (a duty to act with integrity AND a rule on unfair advantage). I come back to this below in my ‘Final Thoughts’ section.
- It is very clear – VERY CLEAR INDEED – that the High Court doesn’t like the SRA or the SDT getting involved in what they think are the personal lives of professional people. When in para 39, the High Court says this: “Yet the approach we have taken in this case is not any form of permission to expand the scope of the obligation to act with integrity simply by making rules that extend ever further into personal life.” – they are in effect saying to the SRA, ‘Don’t think you can get around what we are doing here by rewriting the Handbook to include specific rules that address situations like this’. This is because (as the High Court says in para 39): “Rules made in exercise of the power at section 31 of the 1974 Act (in the language of the Handbook, the “outcomes” and the “indicative behaviours”) cannot extend beyond what is necessary to regulate professional conduct and fitness to practise and maintain discipline within the profession.” I also come back to this below.
Principle 6 and Public Trust
The next part of the High Court’s decision concerns the SDT’s findings in relation to whether there was a breach of Principle 6 by Beckwith, the obligation in the Handbook to “behave in a way that maintains the trust the public places in you and in the provision of legal services”. I’m going to leave my comments on this part of the judgment for another post. And I am going to ignore the last bit of the case about Article 8 of the ECHR.
What I think we see here is the High Court (in effect) saying the following:
- Get back in your box SDT. You can only do what the rules made under s31 allow you to do. And you can’t willy-nilly go around saying what you think the professional principles mean and you can’t make vague references to “standards”. That’s not ok. You can’t just say breaches are breaches without anything more.
- We are also looking at you, SRA. Your Handbook lacks content and you should be thankful you had Wingate to tell you something about what integrity meant. But don’t think you can now just add in more content. Especially not if that content rubs up against professionals’ personal lives.
- (Although we are not going to really tell you why or explain this fully) The principles only (effectively) exist by reference to the more detailed rules. And also when we judges tell you what they mean and then you can use our rulings as authority.
- There are lines to be drawn between “the personal lives of those who are regulated” and what those regulatees do as regulatees. But we also aren’t going to tell you where that line is. Everything is “case by case”. [– If I am right about this final point, then this has the potential to drive a coach and horses through the SRA’s vision of their regulatory scheme. That elevates the prospects of an appeal, I would say.]
It’s a challenging case to read. This may be my fault (I wrote this blog on the day the case was handed down and at the end of a busy week) but I do think there’s a lot that’s not as clear as it could be in this judgment. And I might come back and say more about it in due course after a few more reads. I really hope this case is appealed. I’d like to know more on these two big points:
- What comes first, the professional principles or the detailed rules? If (like the High Court thinks in Beckwith) the principles are construed by reference to the Handbook… then what’s even the point of the principles? Are they just nice window dressing? [They’re not, and the LSA and the Handbook says they’re not, and the history of professional regulation means they cannot be…] It seems to me like Beckwith gives permission for lawyers to say to the SRA (any anyone else): ‘Show me the specific rule that I have broken’. Rather than the SRA (or anyone else) being able to say: ‘Being a professional means accepting that you deploy your expertise in the public interest and not just in your client’s interests. We give life to that idea via professional principles which sit above the specific rules we have enumerated and which act as a form of failsafe.’ What this case does is to severely – really severely – narrow the ambit of the SRA’s professional principles. The work those principles can do has now been curtailed. And I don’t think that can be right. This is both as a point of principle (haha) and because of the role played by the clear and specific drafting in the Legal Services Act 2007, a piece of legislation the High Court oddly felt no need to refer to or engage with.
- Second, at what point does s31 no longer permit the SRA to have any regulatory interest in conduct by a solicitor? What is the line between the personal and the professional? And is that line more complex when we are talking about sexual conduct between two solicitors in the same firm (and in the same team where one is a partner and one an associate… and where the conduct relates in part to after work drinks)? I’ve had mixed feelings about this for some time. Ever since the SRA’s ‘A Question of Trust’ asked the public if they thought a (hypothetical) corporate lawyer should be struck off for drink driving (among other questions). There must be some things, lots of things, which solicitors do which it is not ok for the SRA to be interested in. But there must also be things which solicitors do, even when not acting as solicitors, that are part and parcel of appropriate regulatory remit.
I’d also really like to know more about that it means to have “integrity”. But I feel I may need to manage my unrealistic expectations down on that front.
[ps – Richard kindly read a draft of this blog on Friday and offered some comments. All errors are, sadly, my own.]