Last month, the Solicitors Disciplinary Tribunal (SDT) struck off a lawyer, Oliver Bretherton, after upholding 70 allegations of misconduct, concluding that he had abused his position of authority over junior, female colleagues and had demonstrated a lack of integrity.
The SDT’s full decision will be published in the summer, but details of Bretherton’s conduct, which occurred during his tenure at Gowling WLG, have already been widely published in the legal and mainstream press.
The SDT considered allegations by three junior staff concerning conduct that spanned nearly two years. They also heard from witnesses who described inappropriate comments by Bretherton about one of the complainants.
In response to the SDT’s findings, Gowling WLG’s Chief Executive called Bretherton’s behaviour “abhorrent”’ and said the firm was “appalled that some of our people had to endure such unacceptable attention from a colleague.” He also encouraged anyone experiencing unacceptable behaviour of any type to come forward.
Although we understand that the SRA found no case for Gowling WLG to answer, a big question is whether the firm could (and should) have done more to prevent this kind of conduct and encourage people who were aware of it to come forward at the time?
A cautionary tale
Employers already have a legal duty to provide a safe working environment for their staff that is free from discrimination and harassment. For law firms, the new ‘fair treatment’ rules introduced by the Solicitors Regulation Authority (SRA) add an important regulatory dimension to this.
As summarised in our earlier bulletin, the SRA’s new rules impose an express duty on lawyers not to harass staff, and impose an obligation on partners and others with management responsibility to challenge behaviour that does not meet this standard.
The facts of the Bretherton case suggest that there was a barrier to speaking up about unacceptable conduct, enabling Bretherton’s behaviour to go unchecked and to escalate to the level described in the press reports.
Law firm partners and managers would do well to treat the Bretherton case as a cautionary tale. They should ask themselves whether the firms they are responsible for have done everything they could reasonably be expected to do to satisfy the SRA that staff understand what conduct is unacceptable and how to raise concerns. Crucially, they should ensure that people feel able to raise concerns about unacceptable conduct.
What next?
There are relatively straightforward steps that the SRA will expect all firms to have taken that can be implemented immediately, such as ensuring that their policies are up to date, have been recently circulated to all staff (including partners) and that all employees and partners have recently attended tailored, impactful training on the legal and regulatory standards that apply to their treatment of their colleagues.
However, this is only a foundation for compliance with legal and regulatory requirements. The purpose of the new rules is to address the toxic culture which the SRA has identified in some firms.
We expect the SRA to hold firms accountable for demonstrating that they have considered whether there are cultural weaknesses and that steps have been taken to address specific problems. Firms should be exploring how they create – and maintain – a genuine speak-up culture that empowers anyone in the firm to raise concerns without fear that it will negatively impact them.
Whilst most firms will list inclusivity, respect and open communication and as central to their culture and values, the reality often does not match the vision. We recommend that all firms open themselves up to an external audit that takes a critical, unflinching assessment of working practices and potential risk areas. This will identify potential blind spots that can then be remedied.
How we can help
We have an established track record of advising law firms on how to navigate the legal, regulatory and cultural complexities around diversity, bullying discrimination and harassment.
Please contact us if you would like to discuss how we can support your firm and its partners to meet the new requirements and to avoid the ramifications of not doing so.
Authors
Tom Pennington-Hare
Legal Director
Joanna Chatterton
Partner
Aron Pope
Partner
Daniel Sutherland
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