Regulatory outlook part 2 – a change of approach by the SRA?

Published 6 May 2021

Some commentators are questioning whether the SRA will become more lenient in light of increased criticism, both from the Courts and from the profession.

Will the SRA change its approach to conduct outside work?

Ever since Ryan Beckwith won his appeal to the High Court in November 2020 against the finding by the SDT that he had engaged in “inappropriate sexual conduct”, we have been considering whether the SRA’s scrutiny of misconduct taking place, strictly speaking, outside the workplace will cease.

Quashing the fine levied against Beckwith, the Court also held that he had not breached two of the SRA’s Principles, namely that he lacked integrity and had acted in a away which would underline the public’s trust in the legal profession. Whilst Beckwith’s conduct harmed his reputation and whether (for example) a client might want to instruct him personally, it did not harm the profession as a whole.

It will be interesting to see the SRA’s approach to the 140 on-going investigations relating to sexual misconduct.

Are “moment of madness” cases being treated more leniently?

The recent case of SRA v Harina Zoey Panesar-Jagdev arose after the respondent solicitor repeatedly made mistakes when sending emails, and upon becoming aware of her mistakes amended the emails to try to conceal her errors. When challenged by her client, she did not answer honestly, but a day later she admitted everything to her firm.

The SRA initially alleged that the solicitor had acted dishonestly. The matter came before the SDT but only to approve an Agreed Outcome, which provided that the solicitor would be suspended for six months.

The SDT agreed that strike off was not warranted because of the speed in which the solicitor had confessed what she had done, having told her supervisor the following day.

Contrast this with the 2016 decision in the case of Rafique Hussain Chowdhury, a solicitor who faked and backdated three client care letters which had never been created or sent. Chowdhury argued that he was in a state of panic and took those steps in order to “regularise the file”. Despite this, he was struck off despite the SDT concluding that this had been a “sad case”.

Arguably the distinguishing factor between the two cases was that, far from being open with the SRA, Chowdhury was considered to have been “evasive”.

However, in early 2020 another solicitor, Angelina Rigby made a misleading statement in an application for relief from sanctions. There was no suggestion that she did not cooperate with the SRA but she was struck off.

Within a period of a year, therefore, we can see a change in the way in which “moment of madness” cases are treated by the SRA. Much will depend on the facts of the case, and specifically the extent of pre-meditation and planning which went into the alleged misconduct. Crucially, it appears that the SRA is putting a new emphasis on cooperation.

A case to watch is that of Claire Matthews, the junior solicitor who left a briefcase on a train and struck off on the grounds of dishonesty. In her defence, she pleaded that failing to tell her firm was a “moment of madness” but that she was “overcome by uncontrollable fear, anxiety and panic” at the time.

The SRA will be mindful of the profession’s reaction to the Matthews case and, in admitting new medical evidence, demonstrates a new recognition that a “moment of madness” can arise from a genuine mental health crisis.

Our view

We predict that the SRA will focus its attention on misconduct within the workplace, but that serious, sexual misconduct even outside the office will not be immune from the Regulator’s gaze. We are already seeing how such cases can arise even in the new world of remote working, as a non-solicitor employee of an international firm was banned from working in the profession in March for sexually harassing a colleague via WhatsApp.

The SRA will also want to demonstrate that it is in tune with society’s views on mental health issues. That must mean increased recognition of stress, burnout and anxiety and how that can impact decision making – particularly where a mistake is made.

Neither of these developments cause us to conclude that the Regulator has become more lenient and at no stage has there been any indication that standards have been relaxed in any way.

What is clear, however, is that solicitors should promptly self-report incidents of misconduct and make early admissions because, in some cases, that can make a significant difference to how the SRA decides to proceed.