Dealing with the SRA’s

widening scope of interest

IAIN MILLER, PARTNER, KINGSLEY NAPLEY

Sponsored by #legalriskconf
 About the Speaker
Iain Miller, Partner, Kingsley Napley
Iain is a partner in Kingsley Napley LLP. His particular expertise is in the field of legal services
regulation and legal ethics. He is General Editor of Cordery on Legal Services and co-editor of
Butterworth’s Guide to the Legal Services Act. Iain’s legal services practice combines acting for
law firms and other legal services providers along with advice to the main legal services
regulators.
He is Chair of the Association of Regulatory and Disciplinary Lawyers, Member of the Editorial
Board of the Law Society's Legal Compliance Bulletin and a Member of Consulting Editorial Board
of LexisPSL Practice Compliance. He is also on the Advisory Board of the IBA’s Professional Ethics
Committee and a Member of the Advisory Panel to UCL’s Centre for Ethics and Law’s Review of
Legal Services Regulation. Iain is ranked in Band 1 in Chambers & Partners Guide to the UK Legal
Profession in the field of professional discipline. He is also ranked in Chambers in Band 1 for
Administrative & Public Law. Iain is named as a leading individual in the Legal 500 in the field of
professional discipline. In 2013 Iain was included in the Lawyer Magazine's Hot 100.

#legalriskconf
Dealing with the SRA’s Widening Scope of
Interest
Iain Miller, Kingsley Napley LLP
Topics to cover

1. Sexual Misconduct and Non-Disclosure Agreements – Developments over

the last 12 months

2. Changes to the boundary between private and professional life?

3. What responsibility do firms have?

4. What is the firm based response to these developments and changes?

5. SRA Reporting obligation

The Changing Landscape

“ I should point out at once that standards of professional

conduct change as time passes. What is entirely proper for one
generation may be slightly irregular for the succeeding generation
and highly improper for the next.

Sir Thomas Lund

A Guide to the Professional Conduct and Etiquette of Solicitors
The Law Society, 1960
Sexual Misconduct
• #Metoo began October 2017

• Number of press reports during 2018 concerning England & Wales law
firms
• “When reporting to the Committee in March, we noted that we had some
23 cases reported to us since November 2015. That figure has more than
doubled and we now have over 50 on-going cases.” SRA to WESC 7th
September 2018

• “The SRA estimates that it will be sending an additional 25 cases related

to sexual misconduct and that these cases will require an additional 81
hearing days” SDT Budget application to LSB
Non-Disclosure Agreements
• SRA Warning Notice. 12th March
2018
• UCL Centre for Ethics and Law
Report: Ethics and NDAs April 2018
https://www.ucl.ac.uk/laws/sites/laws
/files/ethics_and_ndas.pdf
• Women and Equalities Select
Committee Report 25th July 2018
• ABC and others v Telegraph Media
Group [2018] EWCA Civ 2329
• Law Society Practice Note: Non-
disclosure agreements and
confidentiality clauses in an
employment law context
The blurred boundaries between work
and private life

• R (on the application of Pitt and Tyas) v General

Pharmaceutical Council [2017] EWHC 809 (Admin)
• RCVS v Samuel [2014] UKPC 13
• R (on the application of Ngole) v University of Sheffield [2017]
EWHC 2699 (Admin)
• In the solicitors sphere see Mark Lewis, Deborah Daniels
What are the firm’s SRA obligations?
Current Principle 6 and 8:
“Run your business…in accordance with proper governance and
sound…risk management principles.”

Soon to be:
2.1 You have effective governance structures, arrangements, systems
and controls in place that ensure:
(a) you comply with all the SRA's regulatory arrangements, as well as
with other regulatory and legislative requirements, which apply to you;

AND…
2.5 You identify, monitor and manage all material risks to your
business,

4.3 You ensure that your managers and employees are

competent to carry out their role, and keep their professional
knowledge and skills, as well as understanding of their legal,
ethical and regulatory obligations, up to date.
A few principles around firm’s conduct
responsibilities
SRA v Leigh Day [2018] EWHC 2726
(Admin)
“whether a breach of the rules should
be treated as professional misconduct
depended on whether it would be
regarded as serious and reprehensible
by competent and responsible solicitors
and on the degree of culpability.”
(paragraph 157)
Akodu v SRA [2009] EWCA 3588
(Admin)
One partner cannot be vicariously liable
for the misconduct of another.
Vicarious liability is a private law
concept.
How far the firm is responsible fact
sensitive. Spectrum from systems
failures to dishonesty
Issues for firms to consider

Training
Policies
Culture
Alcohol
Governance
Have a Plan
NDAs
• Are your precedents up to date?
• Do those using them understand the ethical issues including the HR Department?
Reporting obligation

SRA Consultation, August 2018:

What are the latest developments and likely dates?

Key areas:
• Do you report? (justifying not reporting);
• Internal firm investigation balanced against promptness;
• How do you report?
Questions

Iain Miller
imiller@kingsleynapley.com
www.kingsleynapley.co.uk | Kingsley Napley LLP is authorised and regulated by the Solicitors Regulation Authority