The #MeToo movement gained significant international attention following allegations of sexual assault and harassment by some of Hollywood’s stars. Following these revelations more prominence has been given to investigating and addressing harassment and sexual assault allegations especially within the workplace. As with many professions and industries allegations relating to the legal profession are coming to light.
Widespread allegations have been made against lawyers, from high profile firms to smaller high street practices. Following anonymous evidence and information given to the press it has been reported that a City law firm paid a significant amount to a junior lawyer following a partner sexually assaulting her. She signed a non-disclosure agreement (NDA) and left the firm whilst the partner concerned was reported.
It is understood that regulators are struggling to deal with the number of cases that are coming to light and the backlog may take years to address despite instructing a team of specialists to investigate the claims. The Law Society is due to publish its own guidance shortly.
The Solicitors Regulation Authority (SRA) has issued a warning against NDAs and reminded lawyers of their obligations.
They are concerned that whilst NDAs can legitimately be used for the mutual benefit of both parties for confidentiality and reputational reasons that such agreements should not:-
- Prevent the subject of the NDA from notifying the SRA or other regulators or law enforcement agencies of conduct which might otherwise be reportable;
- Prohibit someone of notifying the SRA of a breach of conduct by an individual or firm;
- Be used as a means of threatening litigation or other consequences to prevent people from making disclosures to regulators or law enforcement agencies.
This guidance is relevant to everyone regulated by the SRA – managers, employees, HR departments within law firms and practitioners advising clients on the use of NDAs.
Failure to take account of the SRA’s guidance may amount to a breach of the SRA Principles 2011:
- Principle 1: uphold the rule of law and the proper administration of justice
- Principle 2: act with integrity
- Principle 3: act independently
- Principle 6: behave in a way that maintains the trust the public places in you and in the provision of legal services
- Principle 7: comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner
- Principle 8: run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles.
The SRA also refer to the practical guidance for employers on sexual harassment in the workplace, as published by the Equality and Human Rights Commission. The guidance details employers’ responsibilities, what a sexual harassment policy should include, how to put policy into practice, how to handle complaints and what might amount to criminal behaviour.
However, opinion is divided on who and how such allegations should be dealt with. Previously such allegations would have been dealt with internally by HR departments and some think reporting such issues to the regulator goes too far. There are others who accept it is safer to report the incidents externally.
Law firms need to ensure their policies are up to date and in line with the SRA’s guidance. They also need to take seriously any allegations that come to light.
Lawyers are not immune to these scandals and investigations must be taken seriously.
As the SRA continue to investigate and work through the backlog this may impact the regulators budget and lead to increased funding being sought by the SRA.
Posted by Miriam Rahamim, a solicitor with BLM