The SRA has sought to reassure victims of sexual assault in the legal profession that they will probably not be punished for failing to report their attacker.
Under the SRA Code of Conduct 2011 a solicitor "must" report to the SRA "promptly" serious misconduct by any person who is authorised by the SRA or who works for an authorised firm.
The provision was cited as a potential problem for Baker McKenzie when RollOnFriday revealed that a senior partner had sexually assaulted a junior lawyer. Instead of reporting him to the SRA, the firm arranged for the partner and the victim to enter into a settlement agreement which, sources close to the matter told RollOnFriday, contained prohibitions against disclosure. In doing so, Bakers may have breached its obligation to report the sexual assault. The SRA is currently considering whether to launch an investigation into the firm.
However, the Code makes no exemptions for victims. It means that solicitors who are sexually assaulted by other solicitors are under the same obligation to report the assault to the SRA as any other authorised person who becomes aware of it, and could be in breach if they fail to inform the regulator.
-room full of men- | The Code's architects were confident they had drafted for every eventuality. |
RollOnFriday asked the SRA whether the Code's draftstmen had failed to allow for the possibility of sexual assault in the workplace. RollOnFriday also asked whether the Code consequently failed to allow for the circumstances in which victims of sexual assault find themselves, where factors such as fear of professional repercussions and emotional trauma may discourage them from making a report.
Unable to point to an explicit exemption for victims, the SRA instead sought to provide comfort to victims by indicating that it would waive the letter of the Code. An SRA spokesman said, “Our rules focus on public protection. It is important that the profession reports instances of misconduct so we can help maintain high standards and protect the public".
He said, “In instances that involve allegations of sexual harassment involving colleagues, or other improper behaviour, we would expect the employer to lead on reporting this to us. In the first instance, the onus is on the firm".
And, he said, “We do not anticipate taking any action against a solicitor for not reporting allegations of sexual harassment, where they had been the victim”. He also confirmed that the onus remained on the firm even where the victim entered into a settlement agreement with an NDA component in exchange for payment. The guidance comes as a wave of sexual harassment allegations have hit the legal profession in the wake of Harvey Weinstein's exposure and the MeToo movement.
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I have never chosen to report anything like this against me at work and would not (unless it was something like rape and even then it should be at my discretion)
Loads of women choose not to report it because you can bet your bottom dollar the SRA will not be undertaking to indemnify us for resulting losses eg £300k for the next 30 years of our career which we might lose from reporting this kind of thing. That can be the kind of loss whistleblowers suffer.
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Any failure to provide for this scenario when drafting the rules was plainly an oversight, and it seems the gist of the conversation ROF News had with the SRA went as follows:
"Would you prosecute a solicitor who was a victim of workplace sexual harassment, or worse, for failure to report it? Pedants R Us have pointed out the the possibility is not expressly excluded by the Rules"
SRA: "No of course we wouldn't"
ROF News "Aaaaa-haaaaa! I'm going to write a snarky article anyway"
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If anyone (including ROF) bothered to do some research on the interwebs they would find the following SRA page:
http://www.sra.org.uk/solicitors/enforcement/solicitor-report/other-solicitor-results.page
which provides for an anonymous hotline for reporting. So it shouldn't be an issue in practice. But, of course, the rules should be clarified to say that you don't have an obligation to report if you are the victim.