11976.2019.senior Et Al-2 PDF

SOLICITORS DISCIPLINARY TRIBUNAL
IN THE MATTER OF THE SOLICITORS ACT 1974 Case No. 11976-2019
BETWEEN:
SOLICITORS REGULATION AUTHORITY Applicant
and
GARY SENIOR First Respondent

BAKER MCKENZIE UK LLP Second Respondent
THOMAS KENNEDY CASSELS Third Respondent
MARTIN BLACKBURN (unadmitted) Fourth Respondent
______________________________________________
Before:
Mrs J Martineau (in the chair)

Mr P Lewis
Mr R Slack
Dates of Hearing: 2-10 December 2019, 16-19 December 2019, 8 April 2020, 27 April 2020,
1-7 May 2020, 20-22 May 2020, 12-15 June 2020
______________________________________________
Appearances
Andrew Tabachnik QC, barrister of 39 Essex Chambers, 81 Chancery Lane, London WC2A 1DD
instructed by Capsticks LLP for the Applicant.
Gregory Treverton-Jones QC, barrister of 39 Essex Chambers, 81 Chancery Lane, London WC2A 1DD
instructed by Radcliffes LeBrasseur for the First Respondent.
Patricia Robertson QC and Chloe Carpenter QC, barristers of Fountain Court Chambers, Fountain
Court, Temple, London EC4Y 9DH instructed by Kingsley Napley LLP for the Second Respondent.
Richard Coleman QC and James McClelland, barristers of Fountain Court Chambers, Fountain Court,
Temple, London EC4Y 9DH and Brick Court, 7-8 Essex Street, London WC2R 3LD respectively
instructed by Clyde and Co LLP for the Third Respondent.
Jonathan Laidlaw QC and Lewis MacDonald, barristers of 2 Hare Court, Temple, London EC4Y 7BH
instructed by Howard Kennedy LLP for the Fourth Respondent.
______________________________________________
JUDGMENT
______________________________________________
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Reporting restrictions
In the course of proceedings the Tribunal made directions relating to the reporting and
publication of this matter.
1. Persons A, B, C and T (as referred to in the Rule 5 Statement) shall be anonymised

in these proceedings and Person A, B, C and T’s name and any matters personal
to Person A, B, C or T which may lead to the identification of Person A, B, C or T
shall be withheld from the public in the Tribunal proceedings, including at any
hearings which take place in public and in the Tribunal’s published Judgment.
2. The publication in connection with these proceedings by any Person of Person A,

B, C or T’s name or any matters personal to Person A, B, C or T which might lead
to identification of Person A, B, C or T (including any still or moving picture of
Person A) is prohibited.
Allegations
First Respondent
1. The Allegations were that while in practice as a Partner at Baker McKenzie LLP (the
Firm), and while holding the position of Managing Partner of the Firm’s London office,
the First Respondent:
1.1. On or about 23-24 February 2012, having attended a university recruitment event
organised by the Firm along with Person A and others, behaved in an inappropriate
manner towards Person A in that he sought to initiate intimate activity with Person A
in circumstances in which the First Respondent:
1.1.1 Was, and knew himself to be, in a position of authority and responsibility over
Person A in that he was the Managing Partner of the London office of the Firm
in which Person A was a junior fee earner;
1.1.2 Had knowingly caused Person A to be alone in the First Respondent’s hotel
room with him; and/or
1.1.3 Said to Person A that he was attracted to her, Person A not having indicated
that such conduct was wanted or invited; and
1.1.4 Attempted to embrace and kiss Person A, Person A not having indicated consent
to such contact; and
1.1.5. Persisted in said conduct despite Person A indicating that such conduct was not
appropriate;
or any of the above, and in doing so breached one or more of Principle 2 and Principle
6 of the SRA Principles 2011.
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1.2 On dates between 27 February 2012 and 16 April 2012, improperly sought, by reason
of his position of seniority within the Firm:
1.2.1 To influence the conduct of an investigation into the matters alleged at 1 above;
1.2.2 To influence the outcome of an investigation into the matters alleged at 1 above;
1.2.3 To prevent information being appropriately shared within the Firm as to the
nature and outcome of the complaint by Person A as to the conduct of the First
Respondent; and in doing so breached one or all of Principle 2, Principle 6 and
Principle 8 of the SRA Principles 2011.
1.3 On or after 7 March 2012, failed promptly or at all to report to the SRA the conduct
referred to at 1.1 above, or the findings by the Firm in relation to the conduct referred
to at 1.1 above, and in doing so breached Outcome (10.4) of the SRA Code of Conduct
2011 and Principles 2 and 7 of the SRA Principles 2011.
Second Respondent (“the Firm”)
2. The Allegations were that the Second Respondent:
2.1 Caused or allowed an investigation to be conducted into a complaint by Person A as to

the conduct of the First Respondent and:
2.1.1 Allowed the First Respondent improperly to influence or seek to influence the
conduct of the said investigation by reason of his position of seniority within
the Firm;
outcome of the said investigation by reason of his position of seniority within
the Firm;
2.1.3 Failed to cause the complaint to be effectively or independently investigated;
2.1.4 Failed to cause information to be appropriately shared within the Firm, and/or
with the global Firm’s General Counsel, as to the nature and outcome of the
complaint by Person A as to the conduct of the First Respondent; or any of the
above, and in doing so breached Principle 6 and Principle 8 of the SRA
Principles 2011.
2.2 Failed promptly or at all between 2012 and February 2018 to report to the SRA serious
misconduct by a regulated Person, namely the First Respondent, in that the Firm failed
to report the First Respondent’s conduct to the SRA, having found or in the knowledge
that:
2.2.1 The First Respondent had sought to initiate intimate contact with a junior female
employee [Person A] at a Firm-related event;
2.2.2 The First Respondent had been guilty of “a serious error of judgement” in
respect of such conduct;
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2.2.3 The First Respondent’s conduct was aggravated by his seniority;
2.2.4 The First Respondent’s conduct had caused harm to Person A;
2.2.5 The First Respondent should be issued with a written warning, and by reason of
such failure breached one or more of Principles 6, 7 and 8 of the SRA Principles
2011 and Outcome (10.4) of the SRA Code of Conduct 2011.
Third Respondent
3. The Allegations are that while in practice as a Partner at the Firm, the Third Respondent:
3.1 Conducted an investigation into a complaint by Person A as to the conduct of the First
Respondent and:
conduct and outcome of the said investigation by reason of the First
Respondent’s position of seniority within the Firm;
outcome of the said investigation by reason of the First Respondent’s position
of seniority within the Firm;
complaint by Person A as to the conduct of the First Respondent;
or any of the above, and in doing so breached one or more of Principle 3, Principle 6
and Principle 8 of the SRA Principles 2011.
3.2 [Withdrawn];
3.3 Failed promptly to report to the SRA, or cause to be reported to the SRA by the Firm,
serious misconduct by a regulated Person, namely the First Respondent, in that he failed
to report the First Respondent’s conduct to the SRA, in the knowledge, or having
recommended to the Firm that it find, that:

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3.3.5 The First Respondent should be issued with a written warning and by reason of
such failure breached Principles 6 and 7 of the SRA Principles 2011 and
Outcome (10.4) of the SRA Code of Conduct 2011.
Fourth Respondent
4. The Allegations against the Fourth Respondent, who was not a solicitor, were that while
employed as the HR Director of the Firm he had been guilty of conduct of such a nature
that in the opinion of the Applicant it would be undesirable for him to be involved in a
legal practice, in that he:
4.1. Conducted or caused or allowed to be conducted, an investigation into a complaint by

Person A as to the conduct of the First Respondent and:
conduct of the said investigation by reason of the First Respondent’s position
outcome of the said investigation by reason of the First Respondent’s position
complaint by Person A as to the conduct of the First Respondent;
or any of the above, and in doing so breached one or more of Principle 3, Principle 6
and Principle 8 of the SRA Principles 2011.
4.2 [withdrawn]
4.3 Failed promptly to report to the SRA, or cause to be reported to the SRA by the Firm,
serious misconduct by a regulated Person, namely the First Respondent, in that he failed
to report the First Respondent’s conduct to the SRA, in the knowledge that, or in the
knowledge of the Firm’s findings that:
4.3.5 The First Respondent should be issued with a written warning;

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and by reason of such failure breached Principles 6 and 7 of the SRA Principles 2011
and Outcome (10.4) of the SRA Code of Conduct 2011.
5. The case proceeded under the Solicitors (Disciplinary Proceedings) Rules 2007.
Preliminary Matters
6. Application for Fourth Respondent to give more detailed evidence-in-chief
6.1 The parties had been directed to serve an agreed hearing timetable by 8 November 2019.
This had not been complied with and therefore the Tribunal was required to deal with
this at the start of the hearing.
6.2 Mr Laidlaw told the Tribunal that he proposed to call the Fourth Respondent and to
take him through his evidence in chief for a full day in terms substantially fuller than
the Fourth Respondent’s witness statement. This was opposed by the Applicant and all
other Respondents. Mr Laidlaw submitted that it was not unheard of for a Respondent
to set out his case in examination in chief. The Fourth Respondent had served a short
witness statement (comparatively to the other Respondents) and there had been no
direction preventing examination in chief. Mr Laidlaw told the Tribunal that the
decision to file a short witness statement and rely on evidence in chief was a “tactical
choice”. He would be able to set his case out much better in oral evidence. Mr Laidlaw
asked that if the Tribunal was not with him on this point then he would seek leave to
file a more detailed witness statement, something that was also opposed by the
Applicant and the Third Respondent.
6.3 The Tribunal considered the submissions of the parties.
6.4 Rule 14(6) of the Solicitors (Disciplinary Proceedings) Rules 2007 (“SDPR 2007”),
which were applicable to this case, stated as follows:
“If any party intends to call as a witness any Person who has not produced a
Statement, he must, no later than 10 days before the date fixed for the hearing,
notify the Clerk and any other party to the proceedings of his intention and
forthwith serve a copy of a written proof of evidence on the other party and
lodge five copies with the Clerk”.
6.5 It followed from this that if there were matters that had not been addressed in the Fourth
Respondent’s witness statement, Rule 14(6) should have been followed.
6.6 The Tribunal had also issued standard directions which, included the following:
“9 The Applicant and Respondents shall file at the Tribunal and serve on
every other party the witness statements of any witnesses upon whose
evidence they intend to rely at the substantive hearing and whose
statement has not already been served by 4.00 p.m. on Friday
8 November 2019.” This date had been subsequently varied to
18 November 2019.
6.7 The Fourth Respondent had served a 10-page witness statement on 15 November 2019.
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6.8 The Tribunal was required to deal with all cases in accordance with the Overriding
Objective, set out in Practice Direction 6 (October 2013). This required that the
Tribunal deal fairly with all parties and deal with cases efficiently and expeditiously
and proportionally. It was common practice before the Tribunal that live witnesses
relied on their witness statement as their evidence in the case, save for corrections or
clarifications where required.
6.9 The Fourth Respondent had taken a tactical decision to give his evidence in chief from
the witness box. This was something which could put the other Respondents and the
Applicant at a disadvantage as they would be hearing parts of his evidence for the first
time during the hearing.
6.10 The Tribunal also did not consider it a reasonable use of Tribunal time to allow the
Fourth Respondent to spend time in the witness box setting out matters that he could,
consistent with the other witnesses, have dealt with in his witness statement. The
Tribunal therefore refused leave for the Fourth Respondent to give examination in chief
beyond correction and clarification.
6.11 The Tribunal then considered the request that he be permitted to file a further witness
statement. Again, to allow this would be to cause potential unfairness and disadvantage
to the other parties. The Tribunal refused to grant leave for the filing of an additional
witness statement.
7. Applications by the Applicant for leave to make a closing submission
7.1 After hearing argument as to closing submissions, the Tribunal refused leave for the
Applicant to have a closing speech. The Tribunal had read all the documentary evidence
and would take a careful note of the oral evidence as well as having regard to the
submissions of all parties including the Applicant. The Tribunal was also greatly
assisted by daily transcripts of the proceedings. If the Tribunal required assistance on
points of fact or law at the conclusion of the evidence then it would ask Mr Tabachnik
for that assistance at that stage.
8. The attendance at the hearing of the Fourth Respondent
8.1 The hearing was adjourned on the seventh day of the hearing (10 December 2019) and
resumed on 16 December 2019 due to matters relating to the ill-health of the Fourth
Respondent.
8.2 [REDACTED]
8.3 [REDACTED]
8.4 [REDACTED]
8.5 [REDACTED]
8.6 [REDACTED]
8.7 [REDACTED]
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8.8 [REDACTED]
8.9 [REDACTED]
8.10 [REDACTED]
8.11 The hearing resumed on 16 December 2019 before being adjourned part-heard until
April 2020 as the case could not be completed in the time allowed. This was not solely
down to the health issues of the Fourth Respondent.
9. Direction that the resumed hearing take place remotely
9.1 During the period of adjournment, the global Covid-19 pandemic began, requiring the
closure of the Tribunal offices and Courtrooms. At a hearing on 8 April 2020 the
Tribunal heard arguments from all parties as to the appropriate way forward. The
Applicant, First, Second and Third Respondents invited the Tribunal to proceed on the
existing dates by remote video-conferencing facilities. The Fourth Respondent opposed
this suggestion and invited the Tribunal to adjourn to the First available date after 1
September 2020 so that an in-Person hearing could resume.
9.2 The Tribunal directed that the matter would proceed on the existing dates and would do
so remotely. It would keep matters under review in order to ensure fairness to all parties.
9.3 The remainder of the hearing took place remotely and was concluded in the time
allocated.
10. Application to withdraw Allegations 3.2 and 4.2
10.1 The Applicant applied to withdraw the above Allegations at the start of the hearing,
having indicated an intention to do so a few days before the hearing began.
Mr Tabachnik told the Tribunal that as part of the ongoing review of the evidence, as a
responsible regulator, it had concluded that it was appropriate to seek to withdraw those
matters.
10.2 There was no objection to the application but there was comment from Mr Coleman as
to the lateness and the rationale in doing so. The arguments relating to that matter are
set out under the section on costs below.
10.3 The Tribunal granted the application and Allegations 3.2 and 4.2 were withdrawn.
Factual Background
Key individuals/entities
11. The First Respondent was admitted to the Roll of Solicitors on 15 November 1986. At
all material times he was a Partner in the Firm and the Managing Partner of the Firm’s
London office. At the time of the hearing he held a current Practising Certificate free
from conditions.
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12. The Second Respondent, also referred to in this Judgment as the Firm, is a Limited
Liability Partnership recognised by the SRA. The Firm is a member of a global
grouping of local entities operating under the Baker McKenzie name, referred to in this
Judgment as the “global Firm”.
13. The Third Respondent was admitted to the Roll of Solicitors on 1 November 1994. At
all material times he was a Partner in the Firm. At the time of the hearing he held a
current Practising Certificate free from conditions.
14. The Fourth Respondent was, at the material time, employed by the Firm as the Firm’s
Human Resources Director, a role which he had held since 2007.
 Person A was an associate at the Firm.

 Person T was Person A’s head of department.
 Person B was employed in the Firm’s HR Department.
 Eduardo Leite (EL) was the global Firm’s chairman.
 Peter Engstrom (PE) was the global Firm’s General Counsel.
 Koen Vanhaerents (KV) was Executive Committee Liaison Partner for the global
Firm.
 Jonathan Westwell (JW) was the Firm’s General Counsel.
 Beatriz Araujo (BA) was a member of the global Firm’s Executive Committee.
 Sarah Gregory (SG) was a partner in the employment law department at the Firm.
 Jenny Barrow (JB) was Head of Diversity and Corporate Social Responsibility
(CSR) at the Firm.
 Paul Rawlinson (PR) was the First Respondent’s successor as Managing Partner at
the Firm.
 Peter Strivens was, at the material time, a Partner and a member of Mancom.
 “Mancom” was the term used for the Management Committee.
 “Mancom partners” referred to those partners that sat on Mancom.
 James Davis – (JD) was a solicitor at Lewis Silkin who was consulted by the Fourth
Respondent at the time.
15. Timeline
DATE TIMELINE EVENT

23.02.2012 Graduate recruitment event outside London.
24.02.2012 Incident, to which Allegation 1.1 relates, in the early hours in the First
Respondent’s hotel room.
24.02.2012 Email from First Respondent to Person A at 03.07 with the word “Sorry!!” in
the subject line.
26.02.2012 Person A sends herself an email about the events in the First Respondent’s
hotel room.
27.02.2012 Meeting at Starbucks attended by Person A, a friend of Person A, Person B,
the Fourth Respondent and JB “the First Starbucks meeting”.
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DATE TIMELINE EVENT

28.02.2012 Fourth Respondent contacts First Respondent asking to have a meeting with
him.
29.02.2012 Fourth Respondent takes legal advice from Lewis Silkin.
01.03.2012 Meeting at Starbucks attended by Person A, Person B, the Fourth Respondent

and JB “the Second Starbucks meeting”.
01.03.2012 Meeting between First, Third and Fourth Respondents
06.03.2012 Meeting to discuss the LLP’s proposed outcome, attended by Mancom

partners, Third Respondent, Person T and SG.
15.03.2012 Meeting between EL and Third Respondent.
15.03.2012 EL gives approval for the proposed course of action.
19.03.2012 Meeting attended by Person A, Person B, Third Respondent, Fourth

Respondent and JB.
23.03.2012 Firm receives a letter from Person A’s solicitors proposing settlement terms.
28.03.2012 First Respondent is sent a warning letter by Third Respondent.
16.04.2012 Settlement agreement signed with Person A.
May/June 2013 First Respondent selected to join the Executive Committee
30.06.2013 First Respondent’s term as Managing Partner comes to an end.
2014 JW made aware of the complaint made against the First Respondent by Person
A and the Firm’s findings.
2015 Fourth Respondent makes a report to the SRA.
2016 Matter further investigated by the Firm.
2018 Matter becomes public due to media reporting of the 2012 events.
16. The incident in the hotel room (Allegation 1.1)
16.1 On 23 February 2012, the First Respondent, Person A, Person B and other members of
the Firm attended a graduate recruitment event at a university as members of a group
of the Firm’s staff. The First Respondent was the most senior member of the group.
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After the formal event at the university, the group socialised together, including a trip
to a nightclub and a bar, both of which the First Respondent attended. They returned to
the hotel that the Firm had arranged for the group. On discovering that the hotel bar
was closed, the First Respondent invited the group to return to his bedroom to continue
drinking from the minibar. After the group had spent some time in the First
Respondent’s bedroom, in the early hours of 24 February 2012, members of the group
decided to leave.
16.2 At this point the First Respondent asked Person A to stay behind in his room, which
she did. The First Respondent said to Person A that he had asked her to remain because
he believed that another member of the group was attracted to Person A, and implied
that he had asked Person A to stay behind to save her from an uncomfortable situation.
The Applicant’s case was that this was a pretext to seek to ensure that the First
Respondent and Person A were alone together in the First Respondent’s hotel room.
16.3 The First Respondent told Person A words to the effect that he was attracted to her.
Person A did not indicate that this conduct was invited or wanted. The First Respondent
then attempted to kiss Person A. The Applicant’s case was that when Person A moved
her head to avoid the First Respondent’s attempt to kiss her, the First Respondent kissed
her on the neck. The First Respondent accepted that he had kissed Person A on the neck
but disputed that there had been any form of coercion used or attempted.
16.4 The Applicant’s case was that Person A’s phone rang and that she said her boyfriend
was calling. The First Respondent accepted that Person A made reference to her
boyfriend attempting to call her on her phone.
16.5 The Applicant’s case was that the First Respondent sought to persuade Person A not to
leave, until a member of the group who had waited outside the room knocked on the
door, at which point Person A left. The First Respondent’s case was that two members
of the group entered the room without knocking because the incident had been so brief
that the door to the room had not had time to close.
17. Immediately after the incident
17.1 Immediately after leaving the First Respondent’s hotel room, Person A became
distressed and told the other members of the group that the First Respondent had tried
to kiss her.
17.2 At 3.07am 24 February 2012, the First Respondent sent an email to Person A. The
subject line contained the word “Sorry!!” There was no other text from the First
Respondent in the body of the email.
18. Person A’s complaint
18.1 On Sunday, 26 February 2012, Person A sent an email to Person B, expressing concern
about the First Respondent’s conduct, saying that she would not be at work on the
following day and asking for a meeting with the Firm’s HR staff. This resulted in the
“First Starbucks” meeting. At that meeting Person A provided a detailed account of the
incident at the hotel. The Fourth Respondent explained to Person A the potential
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outcomes of a grievance, and, in particular, the options of pursuing matters formally or

informally.
18.2 Following the receipt of Person A’s account, the Fourth Respondent contacted the First
Respondent by email on 28 February asking to speak with him. There then followed,
over the following days and weeks a series of emails between the Fourth Respondent,
the First Respondent and the Third Respondent. A number of these emails were referred
to particularly often during the hearing and they are listed in the table at paragraph 20,
below.
18.3 On 29 February 2012 the Fourth Respondent sought external legal advice from Lewis
Silkin, which was to the effect that dismissal was the usual sanction for behaviour of
the type the First Respondent had engaged in. By this time the Third Respondent had
become involved.
19. The Investigation
19.1 The matters that formed the basis of the Allegations relating to the investigation mostly
consisted of email communications, together with the events from a (small) number of
meetings, the majority of which did not appear to have been formally minuted but were
referred to in subsequent emails. The table below sets out some of the key emails the
Tribunal found particularly relevant. The emails listed below are not exhaustive and the
Tribunal read all the emails, and indeed all of the papers, in detail during the hearing
and when deliberating on the matter.
20. Table Of Key Emails
R1 – First Respondent
R3 – Third Respondent
R4 – Fourth Respondent
Date Time Sender Recipient(s) Content summary

24.2.12 03.07 R1 Person A “Sorry”
08.05 Person A Person B “I’ve spent a lot of time thinking about what happened
on Thursday. I feel very uncomfortable about it and
I’m going to call in sick tomorrow, as I do not want to
be in the office (although I will actually be working
from home so will available on email). I would
however like to take you up on your suggestion of an
informal and strictly confidential chat with you and
Jenny Barrow if you are both available tomorrow and
if you still think that would be a good idea. I’m willing
to meet somewhere near Blackfriars, but would prefer
not to meet at the office if at all possible. Perhaps we
can meet somewhere nearby in the early afternoon.”
28.2.12 13.38 R4 R1 “Hi Gary
Sorry to disturb you but something has come up and it
would be good to speak. [K] mentioned that you’re
back to back today but that tomorrow you might have
more gaps in your schedule. I can be flexible - I’ve got
quite meetings with the PRC and with the partner
performance working party but perhaps if you let me
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know when might be convenient, I’ll flex around that
- I think we’d probably need about 20 minutes. Thanks
Martin”
16.44 R1 R4 “Thanks for everything Martin and sorry again”
16.52 Person A R4 “Hi Martin
Thanks for your email and for your time yesterday to
discuss my current situation. I am still considering my
position and in order to assist me with this, I would be
grateful if you could provide responses to the
following questions:
1. Please could you provide me with a copy of the

firm’s formal disciplinary and grievance policy for
my information so I can better understand this
process (I appreciate this is probably available on
the intranet but I am unable to access it from home)
2. You also mentioned an informal resolution

procedure yesterday. In order for this to be
resolved to my satisfaction I would require certain
written undertakings from the firm in relation to
my Personal safety and job security going forward.
Please can you confirm whether the firm would be
willing to enter such a (negotiated) written
agreement with me?
3. Thank you for letting me know the outcome of

your discussion with [redacted]. I would, however,
be grateful if you could confirm that I will remain
on full pay until this issue is fully resolved.
As I have said above, I am still considering position

and must make clear that I continue to fully reserve all
my rights and remedies in relation to this incident in
the meantime. Finally, please pass my thanks to Jenny
for her call earlier today. Kind regards [Person A].
17.16 R4 Person A Hi [Person A]
Thanks for getting back to me and please feel
absolutely free to contact me at any time – I am happy
to meet or speak with you as and when you feel
appropriate.
In answer to your questions:
1. Please find the grievance and disciplinary policies

attached. On the intranet we also publish related
questions and answers and I have therefore also
included these. Do let me know if you have any
problems opening the documents and of course if
you have any further questions about their contents
please do not hesitate to ask.
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2. In terms of a written agreement, I just wanted to
check whether what I have in mind and would
suggest in this circumstance is what you are
seeking. We spoke yesterday about one of the
possible ways forward being an informal route to
resolution. Within this I envisaged a meeting
between Gary, you and myself (or [B]/Jenny if you
preferred) where a formal apology was made
together with clear guarantees that this incident
would have no impact on your future with the firm.
I would typically suggest that such a meeting be
documented and that you have a copy with a
chance to comment to ensure that the copy
accurately reflected the meeting. To my mind, this
achieves both clear communication and a written
record. It also gives you the opportunity to ask any
questions that you have and have both those
questions and answered [sic] written for the record.
3. Your pay will not be affected by your current

absence. I thought it might be helpful if I
additionally attached the sickness policy because I
imagine similarly you don’t have access to this at
the moment.
Of course if you have any other questions please do not

hesitate to get in touch. I wondered whether it would
be sensible for us to speak tomorrow and if so, perhaps
you could suggest a suitable time,
Thanks
Martin
16.44 R1 R4 “Thanks for everything Martin and sorry again”
17.19 R4 R1 “Thanks Gary – I realise this is a really difficult
situation but I am confident we will get through it. I
will obviously let you know as soon as I hear anything
and thank you for being open with me today which has
really helped in terms of managing this”
17.24 R1 R4 “Thank you Martin. If there comes a point where you
feel you ought to be talking to a partner let me know
so I can think about how best to do that. I don’t want
you to be put in a difficult position professionally and
it may be that someone like Tom or John could be
talked to confidentially. I just want it to end but I
suppose that depends on what she really wants. I hope
that her hearing where I am at will make a difference”
20.29 R1 R4 “Thanks Martin. Could we speak later? This feels to
me like someone after a big payoff, perhaps someone
who had doubts whether the City was right for them.
A payoff is not great as apart from the expense for me
– I would imagine she could claim an awful lot – real
danger for the firm of this all coming out. Presumably
a note of an informal meeting could be used as a basis
for a claim. It would be helpful if you could establish
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what she wants. It sounds from the last meeting that
that was something she was contemplating. If she still
might want that but to establish that I did wrong then
of course she does not need much of a procedure to
establish that. But if she wants to threaten to sue us that
is another matter because I could not just fork out a
million pounds”
29.2.12 07.42 R4 R1 “Hi Gary Just to let you know I’ve arranged to meet
James at midday and will obviously update you then,
Martin”
10.10 R4 R1 “Hi Gary I thought it made sense to include [another
individual] on Monday given she was with [Person B]
when [Person A] returned to her room - hence we get
to speak to everyone in HR who has been a party to
this and effectively close that down. I’m at an EY event
this evening - leaving at 5 - but can cancel if required
- perhaps we can take a view later. Also just to let you
know I have a day’s holiday booked on Friday as I’m
going to Lille for the weekend with a friend but again
happy to take a view, Will update you after my meeting
with James [JD]. Let me know if there’s anything you
want me to specifically ask him but I think I’ve got the
jist [sic], Martin”
10.17 R1 R4 “That’s fine re [the other individual], I had thought
about that myself. Re James my only thought apart
from the obvious legal questions is any practical
guidance as regards dealing with [Person A]. As
regards your other commitments I don’t wish to mess
with any of that Martin. My greatest anxiety is us
hearing from [Person A] and knowing where this is
going. With advice you are the best Person to handle
that because a good result is more important than a
quick result, although a quick good result would
certainly help me. Gary”
15.42 R1 R4 “Have you spoken to him? Do you know where he is
at?”
17.17 R4 R1 “Hi Gary
Yes I have now spoken to Tom [R3]. I’ve appraised
him of the situation and the legal advice so I think he
now has the full facts. In terms of where he’s at,
probably as you would expect – he’s very
understanding, sympathetic and concerned. I think
he’d like to speak with you because (a) he’s worried
about you and (b) wants to do the right thing. Let me
know if I can add anything. Cheers
Martin”
17.38 R4 R1 “Just to let you know that [Person A] has emailed me
saying she no longer wishes to meet as she instead
wishes to email me.
I have asked her to reconsider saying that there are

some things I want to share with her even if she doesn’t
16

have any questions for me and that I’m happy if she
prefers not to meet to do this via a call with Jenny on
the call.
I’ll keep you updated”
18.08 R4 R1 I am seeing Tom tonight. Before we convey stuff to
her it may make sense for you to chat the strategy thro
[sic] with him perhaps First thing tomorrow”
21.49 R1 R4 cc R3 “Martin
I had a few drinks and dinner with Tom tonight. Tom
conveyed to me some of the more difficult things that
came out of the James Davis chat. There are clearly a
range of possibilities here. If [Person A] is minded to
return then there is minimal effect on me but I
appreciate I may have some restrictions placed on me
which you and Tom should consider. The other end of
the spectrum is less attractive. Talking to Tom has
been very helpful for me to be reconciled to a not great
end for me.
Going forward I suggest you treat Tom as your internal

client and I will do as directed. Tom is happy to play
that role. Tom also has thoughts on some of the
forthcoming meetings and it would be helpful if you
could chat to him First thing before the meeting late
morning.
For the record Martin, I am extremely impressed with

the professionalism that you bring to this sort of issue.
I am so, so sorry at the role that I have played.
So I now leave it to you and Tom. Just let me know as
and when you need things from me. Thanks to you
both. And sorry again. Best regards
Gary”
22.50 R4 R1 “Thanks Gary and thank you for your kind words.
I also wanted you to know that I’m obviously trying to

do my best by everyone which I know you understand
– trying to remain professional whilst at the same time
feeling absolutely gutted about the situation not least
because of the respect I have towards you. That respect
is, for the record, unchanged over this situation and I,
like you, am still struggling to come to terms with the
potential ramifications which I sincerely hope we can
avoid. It is terrible that one moment could have such
implications and I know that if we could all just roll
back the clock a week we would.
I will obviously speak to Tom re: the meeting with

[Person A]. For what its [sic] worth I still remain
optimistic. I think she might have wanted to cancel the
meeting because her friend [redacted] wasn’t available
17

but when I asked her to rethink because there were
some thoughts and reflections I wanted to share with
her, she did readily agree to meet again. I don’t think
she’s vindictive but I do think she’s fragile.
As ever I will keep you posted and please know that I

am here for you in the same way that for the past for
and a half years and frankly the best years of my career,
you have always been there for me,
Martin”
22.22 R1 R3 “Tom
Many many thanks again for spending time with me. It
means so much to me. I now frankly appreciate some
ends for me which I think are not great and yet I feel
so much happier for having talked to you. Thank you
so much. Gary”
23.06 R3 R1 “Glad you feel a bit better and more than happy to
spend time on this. I am sorry to convey the bad
outcomes but would not be much of a friend if I did
not. That said, please try not to dwell on them as I am
increasingly confident we can land this in an ok place.
Let’s catch up again in the morning. Cheers”
1.3.12 14.44 R1 R3 Subject heading: “Two thoughts whilst in my head”
“Do we need to justify why we are keeping this
confidential.
One half way house to reintegration if that were an
option is possibly working from home. [Person T]
might be quite important around all this if he is minded
to try to get to a solution so I would bring him more
broadly into your thinking”
14.58 R3 R1 “We can easily justify keeping this confidential. Let’s
discuss working from home idea”
15.04 R1 R3 “And perhaps combined with agreeing to pay her until
I have gone altho [sic] that needs a bit of
thought…[Person T’s] views will be important on all
that”
19.58 R1 R3, R4 “Thank you. A plan being created makes me feel
better. I feel very supported”
22.37 R4 R3 “Thanks Tom, and can I just also say how much I’ve
appreciated your support.
Re tomorrow one thing I wanted to say is that I don’t

think we should start talking to the other mancom
partners until next week when Gary’s had a chance to
reflect.
I thought it was a difficult meeting with Gary, perhaps

to be expected and clearly his mood and views swing
and his thought pattern isn’t entirely coherent. I do
worry that he thinks you and I are in some way
responsible for the outcome but I’m afraid I just cannot
see how we could have played this any other way.
Now for another large whisky!
18

Martin”
22.48 R4 R1 “Hi Gary
As requested, I’ve drafted script for Monday’s meeting

for you. Also just to add that if on reflection you feel
this is too soon or simply not the right thing to do you
really must let me know. For what its [sic] worth I
envisage a short meeting along the following lines.
[proposed script]
As you say you don’t want to be reading from a script

but hopefully the above gives you something to work
with and we of course, when we meet in advance can
just hone our thoughts.
All the best

Martin!”
22.51 R3 R4 “Thanks. That is my worry. Sadly I agree re ability to
dodge that bullet. That said I spoke to him earlier and
I feel better about things as a result. He had moved a
lot from where he was in our discussion and I think
(hope) he is less focussed on the messenger.
We have to retain focus on doing what is right. My

view is I can accept any outcome if I feel I have
behaved correctly but would feel vulnerable if I felt
compromised. That is why your support is so valuable.
It is sometimes hard to focus on the right objective but
I am confident that you will not let us drift from that
anchor. I hope you can switch off tomorrow and enjoy
a well deserved break”
2.3.12 04.32 R1 R3 “Tom
Are you effectively out today? Would be grateful if we

could chat re what I think the scenario really means,
presentation to others of the rules, Bea and Paul [BA
and PR].
Many thanks
Gary”
04.34 R1 R4 [Replying to email at 22.37 1.3.12]
“Thanks Martin, on a First read this looks good”
08.45 R1 R3, R4 Subject heading: “Rules for Gary”

“For us to discuss on Monday.
I believe the relevant events are [list of events]
I will go thro [sic] my calendar for the past year to pick

up on any other types of drink events I have attended.
I am frankly amazed at the number of drinks events I
attend in any one year which hopefully provides some
comfort. However I agree to accept rules for the
remainder of my term. I have excluded partner only
events eg new partner dinners.
19

Gary”
16.58 R1 R3 Subject heading: “Thoughts for your script”
[Email set out below due to length]
17.55 R1 R3 “One thought is whether we talk about the junior HR
staff or if we do make clear that we are very confident
they will keep this confidential. There is a danger
Eduardo [EL] will say quite a lot of people know about
this so why should he not discuss with all EC. I suspect
you probably need to cover off the other people given
they crop up in the initial story.”
3.3.12 10.47 R3 R4, PR, PS, “I have had a few conversations with Gary over the
SG weekend as well as a positive discussion with Koen
[KV]. I agreed with Koen that we would confirm our
office position early next week. That will involve
Martin [Blackburn] working through the specifics of
any restrictions we might recommend and us
collectively confirming we are happy with the
proposal we want to make to Koen. To give you
direction, he is content with restrictions and a written
warning of some type plus our plans to accelerate
succession planning etc.
I am out for most of the day tomorrow back in the

office around 5. If we could get together then that
would be great but if that isn’t practical we can find
some time on Tuesday. Gary is likely to want to speak
with all of you tomorrow so if you would like to call
me today to get up to date First please call my mobile.
I won’t be available from around 3-6 but otherwise can
take calls”
4.3.12 16.09 R1 R3, R4 Subject heading: “Re Rules for Gary”
“Thanks Martin. I will think about it too, what’s clear
is that I need to be much more careful about the
situations I allow myself to be drawn into, at least
during my remaining time as MP. By the way Tom has
had a good chat with Koen which you should chat to
Tom about.”
16.16 R1 R3, R4 “On reflection the principles way probably works altho
[sic] I have some thoughts on the detail which I would
like to discuss. I tend to like rules to follow but if we
can agree principles I can then draw up some rules for
myself. But rest assured I know what I need to do”.
19.34 R1 R3, R4 “Could be perhaps establish one simple principle
around which I will establish my own rules. Whilst MP
if I am at an event where there are female staff below
partner or mancom level I will not drink alcohol. An
exception will be if I am there and leave with a family
member eg my wife comes to some events with me.
Around this I may just miss some events I would
otherwise have attended but look to attend anything
where MP attendance is important.
20

Is this ok? In any event one thing I would like to
discuss is how this might be presented to anyone
enquiring. Also, Martin, perhaps we could specifically
discuss getting out of the NQ dinners. By the way I am
concerned that I make these changes in way that does
not give rise to suspicions and questions.
Suggest we discuss next week.
Gary”
20.20 R3 R1, R4 “Thanks Gary. The substance is clearly understood so
I think we can be fairly relaxed about the detail. I am
focussed on presentation though – both internally and
to [Person A]. the latter has a bearing on risk of a bad
reaction so please can you both bear in mind as you
develop this tomorrow?
The other thing to bear in mind is that I have told Koen

that we do not think any of this will detract from your
ability to do your job.
Re NQ dinners I suggest we just rotate them around
mancom partners with the justification being the sheer
volume of evening events you do and a decision at
mancom that we need to share the load more fairly
(which I think we should do anyway – you are doing
too much).
Just spoken to Paul who is if anything more supportive

having digested things.”
20.45 R1 R3, R4 “Tom
Thanks for this.
I am not sure I am the best Person to manage comms
with [Person A] although I would like input on the line
that its taken ay anyone else who asks about a rumour.
From my perspective I have gone above and beyond
what an MP would normally do in terms of being
willing to join in drinking with all sorts of employees.
E.g [reference to a previous event attended by R1]. To
be honest I was much more careful in the early years
but I think over time I became confident I could do it
without crossing any lines. People really like it when I
am there but notwithstanding what was said to Koen I
just can’t take the risk any more at least so long as I am
MP. I don’t think Koen would regard that as me not
doing my job properly.
And frankly it is a burden – I am sometimes at drinks

and dinners every night of the week.
I think our line on this – and maybe it works for

[Person A] - is that Gary unlike many other MPs was
happy to join in with all sorts of employees drinking
late. We have told Gary that he needs to stop doing that
during his remaining time as MP. I assume [Person A]
etc would be asked to keep that confidential.
21
Two other points

We need to develop a line for us, [two other
individuals] if anyone asks us about a rumour. Martin,
I assume your guys will keep this confidential. Do we
need to do anything about [another individual]?
At some point I should say I now want a sabbatical and

think we need to start the soundings. At some point I
would also like to know where mancom came out on
handling press. Please let me have any comments on
when I should go to mancom re sabbatical.
More generally I know we need to close out the

process and I still need to talk to Koen. I am frankly
worried about rumours but we just need to be ready to
deal with that I suppose. My biggest remaining
concern is [Person A] and I will do whatever you think
sensible in that respect – including changing what I
have said above if advisable in that respect. I don’t
think I have much of a sense as to how to handle this.
Its best of [sic] we can somehow keep her firm
connected. Second to stop her getting aggressive. I
would add however that I am terribly unhappy at the
distress that I have caused to her/To be honest that’s
the bit I struggle most with, tempered only by the fact
that the destruction of my career is too high a price to
pay.
Gary”
5.3.12 20.46 R3 R4 “Thanks. Just had another pretty difficult conversation
with Gary. Ranging from despair to unrealistic
demands. What became apparent is that he really wants
John for [sic] is to negotiate for him. Compounds the
awkwardness but I have said it is his call. Let’s see.
Back on the large whiskeys for me tonight I fear.”
21.08 R3 R1 “I agree it would be helpful and this approach looks
right to me.
Reflecting on our conversation you must please tell me
if you don’t think I’m handling this properly in any
respect. There are lots of moving parts and the issues
are not easy. I am very aware that I may not be getting
every judgement call right and I could use any help you
feel able to offer.
If you have other thoughts and want to speak tomorrow
before it all kicks off again I always have a good early
slot when I walk the dog around 6.30am”
21.22 R1 R3 “Tom
I will absolutely tell you that. Its really hard for me to
form clear views on this to be honest. In part because
its so hard for me to think straight on this. I really do
appreciate the very difficult burden you are carrying
and the sensitivity you have shown to me. Its dark for
22

me because of what I have done not because of
anything you have done, quote the contrary.
You have a very good group to talk the issues through.
Don’t feel compelled to decide it all tomorrow. I would
rather time be taken to get the right answer than a quick
answer, although it may all be falling into place.
We need to get Koen and [Person A] in the right place.
I am not in a fit state to achieve that and I would not
have anyone other than you and Martin on the job.
Gary”
21.39 R3 R1 “Thank you. The reassurance is really welcome. It just

occurred me this evening that one reason this is hard is
I don’t have you to fall back on as I always have. Not
sure I have appreciated before how much that has
helped me. I know you are not thinking entirely clearly
but I still need your help and guidance.
6.3.12 12.48 R3 R1 “See below [email from R3 to KV].
Very good and sensible discussion this morning.
Agreement along lines you and I discussed yesterday
plus clear commitment to present as sympathetically as
possible. Let me know if you would like to discuss
later. As you can see I am going to leave it up to Koen
how much he wants to get into detail. Your guidance
on that would be appreciated.”
18.06 R1 R4 “I gave Tom a call and emphasised that I was very
happy with what he was doing, very guilty about what
I had put on him, that he should not try to read things
into what I say, I am very clear about what I want and
think. I think I reassured him.”
22.02 R4 R1 “That’s good. Its really tough on everyone and
particularly you and Tom as you are both in the eye of
the storm so its perhaps not surprising that there are
awkward moments. I think its very sensible that you’re
both honest about that, reflect that and try to
distinguish where you’re frustrated with the situation
vs the Person as I think this needs really clear
signposting.
Of course I will do all I can to support you both and
reinforce this so that hopefully you both emerge from
this with a stronger relationship, not a weaker one
which is clearly what you both want.
Martin”
22.10 R1 R4 “Thanks very much Martin. As so very often you can
help a great deal here. I am very very happy with the
way both you and Tom have handled all of this.
This is an extraordinary period for me. I can see now
in a way I did not before that my work style was
dangerous. As you know me well you will know that
none of that was wilful. I have had a very severe
learning experience that will make me better. I just
don’t know what penalty I will pay. But its all my fault
and I very sincerely have no complaint about you or
23

Tom. And when you next chat to Tom please reinforce
that. I feel very supported but I can’t help but feel
undeserving of that support.
Gary”
7.3.12 09.34 R1 KV, BA Subject heading: “Could we have a chat?”
“Tom has reported on his chats with each of you. I am
very, very sorry that you have had to spend time on
this. I am also sorry that I have not spoken to each of
you before now but I have wanted to make sure that we
have had a proper process which Tom has run very
well. I would like to speak to you, together or
individually. I am now at the hotel but can come over
as and when convenient. My main purpose is to
apologise to each of you in Person – I don’t want to
disturb your preparation for the meeting so it can of
course wait. Otherwise I will just see you at the ERC
meeting, which I am looking forward to.
Gary”
18.41 R1 R3, R4 “I spoke to Koen and Bea. They were both supportive
as you would expect, especially Bea who admitted to
anger but was very supportive in words and
demeanour. I emphasised that I can do the job and that
to be honest the moods were hardest when I am not
doing the job. Koen clearly has a concern were this
might end up re [Person A] although [sic] I tried to
reassure him on the publicity point.
One issue you might think about it is the
confidentiality around specifics that we give to [Person
A] or indeed non-principles somehow involved in this.
A journalist hearing that there was an incident in
[redacted] is very unlikely to pursue I think but if say
they were told that I had received a written warning?
Not sure its an issue but thought I should raise it.”
22.35 R3 R1, R4 “Thanks Gary. We will think about this. Agree re non
principals. Re [Person A] we need to think v carefully
about optimal messaging and would want you
involved in those discussions I think. Hope Paris is
going well. Cheers”.
8.3.12 10.13 R1 R3, cc R4 [Email set out below due to length]

11.46 R1 R3, R4 “Thoughts on [Person T] for you to do with as you
think fit and apologies if this has been done I would
not have [Person T] go in there without him being clear
what we are trying to do and how we see the dynamics.
I would be explicit altho (sic) I am sure he understands
it that keeping this under wraps is most critical. Getting
her feeling happier is obviously consistent with that.
I suspect she will be reluctant to talk to him as in her
mind next step is knowing what is happening to me. It
cuts both ways. If she thinks it’s a whitewash why
should she return to a firm like this. If she is happy
with the action taken how can she return when she has
done this to the MP. Hope the latter will be the case.
24

That’s the point at which [Person T] may have a key
role.
More generally if [Person T] can get a dialogue going
that can only be helpful but I just wonder whether she
might get angry that we are wanting to draw her into
dialogue when she really wants to hear what’s
happening to me.
But to be very clear I do defer to the rest of you as I
really don’t feel I have a good sense how to manage
this, only to throw in thoughts”
13.19 R4 R1, R3 “Here’s my take for what its worth.
In terms of where we’re headed, I Personally think that
its unlikely [Person A] will return. Before this, she was
clearly undecided as to whether London and the Law
for her were right and I note she’s not in any rush to
try and resolve this – she is waiting to see what
happens as is her right but equally she’s not responding
to me (eg she said she would get back to me yesterday
re talking to [Person T] but still hasn’t). I therefore
think we need to reconcile ourselves to the fact that we
will be needing to reach a settlement with her which
we want to make amicably.
With regards to [Person T] our conversation earlier this
week clearly elicited his feelings that he wants her to
return, that it’s the best thing for her (eg what would
she say as to why she had left) and the best thing for
us. We need to balance this carefully, therefore. I don’t
want [Person T] to feel that we effectively blocked him
out from the conversations with [Person A]. And, if
I’m honest, I don’t think he’d need a very detailed
conversation with [Person A] to quickly ascertain that
her chances of return are less than he might have
imagined. I also think such a conversation would be
low risk (as does Sarah). But I suspect it would make
[Person T] feel better about the situation.
Sarah and I feel that we shouldn’t pressure [Person A]
this week but that if she doesn’t respond (as now seems
quite likely), it would be entirely appropriate for
[Person T] to give her a call to see how she is early
next week. I will of course work with [Person T] on
that but I’m also of the view that the longer we leave it
and the more we build up the conversation with
[Partner T], the more difficult it will be to engineer
that. Hence a very simple ‘just calling you to say hello
and check in with you’ will, I suspect held both parties
feel better about the situation, no matter the outcome.
I hope that helps
Martin”
13.28 R1 R4, R32 “Ok. And to be clear I too am now resigned to her
going - [Person T] will not be happy about that. I need
to meet him to more generally apologise but doesn’t
seem clear she would have stayed with us anyway.
[Person T] has a tendency to lose [redacted] and I am
25

sure he has a lot of angst about this trend. I assume that
its after we tell her what we have done that we start to
ask her what she wants. Presumably in any package we
would insert a strong confidentiality undertaking to
cover the events as well as the terms. And one thought
its to do more than we would normally do to move her
into a new job eg good outplacement.”
9.3.12 22.44 R1 R4 “Martin
I assume James Davis knows not to mention my issue
to Jonathan [JW]
Gary”
23.14 R4 R1 “I’d be stunned if he thought he could but I’m very
happy to send him a reminder email if you think I
should”
15.3.12 21.00 R4 PR, PS, SG, “I have had the meeting with Eduardo. It was not the
R4, T most comfortable meeting and he questioned me in
some detail about the events and our reaction. He
wants to think about it between now and Monday but
his immediate reaction is that we have done what we
should have done and that the response is
proportionate. He would like us to encourage Gary to
make a payment to an appropriate charity in addition
to the other steps. He would also like Martin to use
what influence he has with partcom to avoid an over
enthusiastic reward this year if this is what they might
otherwise have in mind. I will need to talk you through
that last point Martin as I have explained the limits of
our collective ability to influence partcom outcomes.
Please feel free to call this evening if you would like
to discuss. Am on my mobile.”
27.3.12 20.42 R1 R3, R4 Subject heading: “Your letter”
“Dear Tom
Thanks for the draft. A few comments but not much by
way of any suggested or requested changes to the draft.
Second para – I think you should include Bea and refer
to her position as being responsible for diversity
globally.
Third para – not sure I actually invited anyone to my
room or rather whether they invited themselves. But
the letter is of course fine as that is not really the point.
Penultimate para. I confirm for the record, not with a

view to suggesting any amendments to the letter, that I
have tremendous remorse around what happened. I
don’t understand how I got myself into that situation. I
let down myself, my position and the firm and for that
I will always be deeply, deeply sorry. And I am very,
very sorry that I put you both in such a stressful
position. I am very lucky to have been in the hands of
two very skilful and professional people.
I confirm that I am already operating under the alcohol

restrictions. The description of awareness training and
26

purpose comes across as suggesting that I have a
broader problem which is perhaps a b it unfair. Could
it just end after awareness training?
Do we have any concerns re not hearing from the other
side today??
Thank you”.
21. “Thoughts for your script” email – 2 March 2012 at 16.58
“Tom
Thought it might save you some time for me to jot down points I would make
although you must be happy to convey it all as you see fit.
General background. Gary does not agree with all that [Person A] has said but
he put his hand up as soon as Martin [Blackburn] contacted him to say that he
had not behaved properly and shortly thereafter a process was put in place which
effectively has been run by me, working with Martin. Apart from consulting
with you we have spoken to the other partners on our mancom, Paul Rawlinson
and Peter Strivens, [Person T] [redacted] and Sarah Gregory, who is a senior
labor [sic] law principal and heads up Diversity in our office. We have spoken
to [SD] from a PR perspective. We have also taken external legal advice. All of
the London partners consulted support what I will be saying to you.
The other people who know are more junior HR people, with responsibilities
for graduate recruitment and CSR, all of whom are female.
Gary is very deeply sorry. He is working ok as MP [Managing Partner] and

frankly its easier for him when he is busy but as you can imagine he is very
troubled by this and fearful that this will destroy his career and potentially his
family life. He knows that I am speaking to you and sked me to specifically
convey to you that he is very sorry to have caused this trouble.
Gary’s HR record is very clean, bearing in mind that he was [sic] worked for
the firm for nearly 30 years and has been MP for over 8 years, including working
in Chicago. There has never been a complaint about him and he does not believe
he has ever behaved in a way that has caused distress or that has even caused
anyone to consider complaining. I would also say that everyone who has been
consulted through this process are extremely supportive of Gary and do not wish
to see his career in any way damaged by this. That includes the more junior HR
staff, two of whom were part of the trip to [redacted].
We are very anxious about too many people being aware of this because of the
danger of leaks and frankly it could get to the point where Gary’s position is
made untenable or feels that it is untenable. The mancom partners are satisfied
that they are able to judge where the other London partners would be on this
issue and feel able to speak on behalf of the London office. We did not feel able
to determine the appropriate steps without consulting firm management, partly
because Gary is such a prominent partner globally and indeed PC chair. So the
purpose of this call is to seek your approval for how we have handled this
27
situation and also what we would propose to report back to Gary upon. Gary
would of course be happy to answer your questions but he is keen that others
run the process and make decisions. Paul and I are in SF next week and would
be happy to meet there if we aren’t able to conclude things on this call. Needless
to say we want to draw this episode to a speedy conclusion.
This is where we are at
1. Obviously we have a responsibility to [Person A] which we are handling.

We have conveyed ours and Gary’s apology to [Person A]. At the moment
[Person A] has not made any decisions. Although it is unlikely that she will
return she has not ruled that out. She has asked what we will doing as
regards Gary and part of our process as described below is to determine the
appropriate steps which we would propose to convey to [Person A] in due
course. There is a potential for a damages claim. Based on legal advice we
believe this would be for a manageable sum and we have plenty of
experience of handling employee claims of various nature. Gary wanted to
pay the damages Personally – my view is that is not appropriate. Given
[Person A’s] Personality we do not believe that she is looking to create
publicity and indeed she has been anxious about people not knowing about
the incident.
2. PR. We have spoken to [SD] in case a journalist somehow got hold of this.
Stephen says that there are lots of stories like this out there – its fair to say
the City has a drink culture but the journalists don’t print them. So even if
this came to the attention of a journalist we don’t think they would act on it.
Clearly if a case got to court that would be a different matter. However we
feel very sure that any case would be settled and that [Person A] would wish
to avoid publicity as much as possible.
3. What should be do as regards Gary? We feel that certain steps should be

taken not least so that we can account to [Person A] and any other partner
who may find out about this in the future. However we are advised by
Martin, Sarah from a diversity perspective and external lawyers that we
should be proportionate in terms of the impact this has had on Gary. We
have had regard to Gary’s track record, that this incident is seen as very
much out of character and also his importance to our business. And also to
how the partners in London would react to steps taken. We do not wish to
see Gary’s career damaged by this and feel that this would be
disproportionate.
We think Gary should be delivered a “yellow card”. Koen [KV] talked about
Gary signing a statement to his future conduct. To be very clear we honestly
don’t see Gary as a “risk”. But as said above we need to be seen to have taken
proper steps.
Then there is the point about the willingness of Gary to pitch up at events with
all sorts of staff. He is a very popular MP [Managing Partner] in part because
he gets on with all types and our people like and encourage the fact that he is
very willing to join in. There are many events at which Gary engages in this
28
fashion. As he explains to us although he goes to lots of such events he has an

antennae that tells him how to behave, as I think we all have. Clearly that
antennae stopped working in [redacted]. However we think we need to change
this and will put some rules down as to what events Gary should attend or attend
and not drink as long as he is MP. Gary will agree to this.
Then Gary as MP. Obviously Gary is very important to our office and regarded
as continuing to do a very good job. He has made clear that he would be standing
down as MP at the end of his current term next year. We need a careful
soundings to line up a good successor, likely to be Paul, but obviously we have
a process to go through to make the London partners comfortable and also to
enable the successor to take transitional steps around their practice. Given the
management team that Gary has put in place we believe that his successor will
be able to do some billable work but given the size of the office and the
complexity of the market, the MP role will continue to be very demanding. If
this incident were to lead to Gary terminating early either because that’s our
decision or because he feels so destabilised that he cannot carry on, we would
have a major business issue. In other words we need Gary to help us with a
transition which will take some time to put in place. I should emphasise that
Gary is very committed to doing the right thing for the firm but you will
understand our concern.
We have considered whether we should accelerate the handover. Sarah’s view

was that it would be unfair on Gary for his time as MP to be curtailed by this
given all the circumstances and we concur in that view. However there was
already some discretion around timing of handover and we will consider that.
The main point is that Gary is due to give up the MP role in any event.
He will give up the PC chair at the same time. Its [sic] really a question for you
whether you asked him to stand down as PC chair. As we said above we do
believe that it would be unfair for this to have that sort of impact on Gary and
his concern is how he could do that without giving rise to lots of questions about
why he is resigning but still remaining a member of the PC.
Gary would like to be told if either of you would feel the need to block him from
going on the EC [Executive Committee] because of this. Both he and we
understand that there is an NC process in any event. he has made clear that he
would like to join the EC next year and London is very supportive of that and
we would be very unhappy if that opportunity is no longer available to Gary
because of this.
We would be grateful if you would not speak to others about this.
Over to you”
22. Email from R1 to R3, ccR4, 8 March 2012 at 10.13
“Some thoughts before you go off Tom. If you want to talk before you go Tom
I can do so around lunchtime or end day Paris time.
29
My sense is Eduardo will be in the same place as Koen and Bea. Once they get
through the emotions the key point is whether this will become public. I have
reassured Bea and Koen that I don’t think its at all likely. But obviously it is a
risk factor and [Person A] is probably at the centre of that. Assuming it does not
all blow up I think for my career prospects it will be important to see if you felt
able to give the EC members a stronger assurance down the line. If there is a
sense going into the Nominating Cmte [sic] process next year this cloud is still
hanging over me then I could have a problem. I have some time on my side in
that the real Nom Com discussion is a year away as I am assuming that the EC
members would not raise this at the EM. Tom, this is not asking you to try to
manage the EC members any further than you have – just voicing some thoughts
that may be relevant for Eduardo and down the line.
On [Person A] you will obviously exercise your respective professional

judgments which is greater than mine. I assume you will take advice from Sarah
and LS and possibly [Person T] if you feel his knowledge of her is helpful. But
there are my thoughts as Tom you asked for them.
I am concerned around confidentiality of specifics as I think they are the things

that are really publishable. I would prefer not to give her anything in writing.
Before we give her and presumably one of her friends specifics we could open
it by saying that what we are about to say includes commercially sensitive
information and we would like them to agree verbally to keep it confidential.
They might say they would like to be able to disclose to get legal advice which
would be fine.
In terms of what I would say if I were you
1. Describe the process followed.
2. Gary accepts that he did not behave properly. He is very sorry about the
distress he caused you. You do not know Gary but I know him well and can
assure you that his apology and unhappiness in genuine.
3. Gary has worked for the firm for nearly 30 years and his record is totally
clean. He has never had a complaint made about his behaviour. This is
obviously a factor in considering the appropriate step to take. We will be
delivering to Gary a formal written warning.
4. We have reflected on the situation and how it arose. We believe it was

wrong for Gary to have invited employees to his bedroom. Its also clear and
Gary recognises this, that he has been very willing to drink into the night
with all types of employee over the years. Gary has been a popular MP in
part because of that. However we think it appropriate that Gary not do that
going forward and he agrees.
5. Gary’s term ends next year and he has already committed not to renew as
London MP. The successor is not yet identified and indeed we will need a
process to identify one and enable that process to make some transition of
their practice and transition to MP with Gary. Its likely that Gary will
30
formally stand down around the middle of next calendar year. We think he
will then take a three month sabbatical and is likely to take up another role,
possibly in practice, with the firm at that point. This is not clear. You may
want to hold this point unless asked.
6. As we would always do in such a situation, we will give Gary some relevant

training.
Gary”
Summary of oral evidence of live Witnesses
23. Person A
23.1 Person A confirmed that her witness statement was true to the best of her knowledge
and belief.
23.2 In cross-examination by Mr Treverton-Jones on behalf of the First Respondent, Person

A confirmed that the First Respondent brought the evening to a close at around 3am, at
which point he had asked her to stay behind. Person A was sure that he had stated “I
want to talk to you about something”. It was put to Person A that the First Respondent
had simply asked her to stay behind, but she was sure in her recollection.
23.3 Mr Treverton- Jones put to Person A that the First Respondent had not spoken to her in
any sort of authoritative way. Person A stated that the First Respondent was the
Managing Partner and the authority was implied. Mr Treverton-Jones took Person A to
the section in her witness statement in which she described Person B asking her if she
was going to be okay before they left the room. Person A was asked if she was sure in
her own mind that that conversation had actually happened as the First Respondent did
not recall it. Person A confirmed that she was sure.
23.4 Mr Treverton-Jones put to Person A that the First Respondent did not recall the
exchange about Person C that she had referred to in her witness statement, to the effect
that the First Respondent believed that Person C was interested in Person A. Person A
responded that she was “very certain about that because I remember feeling relieved
when he said it, thinking that is why he asked me to stay”.
23.5 Person A agreed with Mr Treverton-Jones that the kiss/attempted kiss came to an end
at the same time as her phone started to ring. Person A told the Tribunal that everything
happened very quickly at that point and that her phone was ringing and she had told the
First Respondent that it was her boyfriend calling and that she had to answer it. It was
at this point that everybody came back into the room. Person A told the Tribunal that
the only person with her Personal mobile number was Person C and therefore she
concluded that this was the person who was phoning her.
23.6 Mr Treverton-Jones put to Person A that based on the note of what was possibly the
second Starbucks meeting, her position had been that she wanted to feel comfortable
going back to the firm, that she wanted to clear the air with the First Respondent and
wanted him to apologise as well as having an assurance that this was not going to affect
her career moving forward. Person A stated that the latter was certainly correct. She
31
was indifferent as to whether she had a personal apology from the First Respondent and
she could not see what was to be gained from that.
23.7 Person A told the Tribunal that she was not sure how everybody got back into the room.
In response to the suggestion by Mr Treverton-Jones that she was alone with First
Respondent for less than a minute, Person A stated it was slightly longer than a minute,
probably two or three minutes.
23.8 Mr Treverton-Jones put to Person A that the First Respondent did not recall her turning
her head away when he attempted to kiss her. Person A stated that she believed that he
was able to get to her neck because she turned her head away. Mr Treverton-Jones put
to Person A that the First Respondent had accepted that he had touched her during this
incident but did not accept that there was any gripping or anything like that. Person A
acknowledged the point but did not comment on it either way.
23.9 Mr Coleman asked Person A about the meeting of 19 March 2012. Mr Coleman asked
Person A whether she had understood from the Fourth Respondent before that meeting
that whatever the outcome would be in relation to the First Respondent, the Firm would
want to discuss steps to help her return to work. Person A responded that she was hoping
that depending on the outcome of the disciplinary investigation, the firm would be able
to present her with some suggested measures which they could put in place or
reassurances that they could give her that her career would not be adversely affected.
23.10 As regards the meeting itself, Person A confirmed that she had stated that she found the
Third Respondent very intimidating and that the tone of the meeting was not
conciliatory. She had also stated that she felt that the Third Respondent was stating the
Firm’s position and asking her to state her position. Mr Coleman put to Person A that
the Third Respondent, in his witness statement, had stated that his clear intention had
been to approach the meeting fairly and with compassion and he believed that he had
done so. It was certainly not his intention to intimidate Person A or be anything other
than measured and conciliatory. The Third Respondent had expressed genuine sadness
and regret that Person A had found him otherwise. Mr Coleman asked Person A if she
was aware of the Third Respondent’s sadness and regret. Person A stated that she was
not, because she had had no contact with him since the events in question. Person A
confirmed that the Third Respondent had made her aware that the Fourth Respondent
and by implication the global management committee had been involved in the
investigation into the First Respondent.
23.11 Mr Coleman asked Person A if she recalled that the Third Respondent had told her that
the firm would welcome her return to work after her leave of absence. Person A
confirmed that this was correct and had been repeated by both the Third and Fourth
Respondents but stated that there were no practical suggestions as to how that might
work. Mr Coleman asked Person A if she recalled that during the course of the meeting,
the Third Respondent had stated that the firm would do whatever it could to make her
return to work as smooth as possible. Person A again confirmed that she did recall this
but she remembered feeling that it was like a “hollow offer” without anything concrete
or substantive to back it up. Mr Coleman referred to Person A’s witness statement in
which she had stated that the Third Respondent kept asking her for her suggestions as
to what the firm could do and that she had been upset that they were putting the onus
on her. Mr Coleman asked a Person A whether, with the benefit of hindsight, she
32
thought that the Third Respondent had been asking the questions in a genuine spirit to
try and ensure her ability to the return to the firm and feel comfortable and safe. Person
A stated that her impression of matters had not changed over the years. She had felt
disappointment with the outcome that the First Respondent would be staying at the Firm
although she was not surprised. Person A could not imagine herself staying at the Firm
knowing that there were a number of senior people who knew about what had happened.
At the time she had struggled to come up with ideas as to how this could be mitigated
and nobody else in the meeting had suggested anything either. She had therefore not
felt able to go back. Person A accepted that the Fourth Respondent had made clear at
the meeting that the Firm’s priority was reaching an outcome where Person A was
comfortable returning to work and would be consulted at each stage of the process. She
also accepted that the Fourth Respondent had tried to reassure her that the First
Respondent would not get involved in discussions relating to individual promotions and
salary increases but told the Tribunal that she remained concerned that the First
Respondent could be indirectly influential.
23.12 Person A further accepted that the Fourth Respondent had communicated to her the
idea of a written record of clear guarantees that might be a way forward.
23.13 Person A described Person T as someone that she trusted and who she believed had her
best interests at heart. However, she did not feel that he had influence over what would
happen when she came back save for the fact that he was her Head of Department.
23.14 Mr Coleman asked Person A if it was her understanding that the meeting on 19 March
was not the end of the process and that there would be further discussions as to how she
could return to work in a safe and secure way. Person A agreed with this and told the
Tribunal that she did not know that that was the final meeting that she would have with
the Firm. Person A further confirmed that in the response to the letter sent to the Firm
by Leigh Day, the Firm stated again that it was willing and pleased to have her resume
her career with them.
23.15 Mr Laidlaw put questions to Person A on behalf of the Fourth Respondent. Person A
confirmed that she had had no real contact with the Fourth Respondent of any substance
before these events. She confirmed that the Fourth Respondent made himself available
on 27 February for the meeting at Starbucks. Person A agreed that at that meeting the
Fourth Respondent was seeking to put her at ease in so far as was possible. She also
agreed that there was nothing that the Fourth Respondent had failed to elicit from her.
Mr Laidlaw asked Person A if her interactions with the Fourth Respondent during this
process were characterised by the fact that every time she met him he would tell her
that more and more people had become involved. Person A confirmed that this was
correct. Mr Laidlaw suggested that Person A would have regarded the possibility of
being able to return as diminishing as the number of people involved grew. Person A
confirmed that this was also correct.
23.16 Ms Robertson put questions to Person A on behalf of the Second Respondent.

Ms Robertson put to Person A that Person T had tried to help her in every way he could
to re-establish herself, including after she left the firm. Person A agreed that Person T
had been very supportive. Person A further confirmed that immediately after the
incident she had been understandably distressed and Person B and another individual
had been kind and supportive towards her. They had taken her to their room to talk
33
about what had happened and to help calm her down. Ms Robertson put to the Person
A that no one had ever suggested to her that if she spoke up about the incident that it
would affect her career. Person A confirmed that this was correct. Person A confirmed
that she had taken up the suggestion of a confidential chat at first and it was after that
that she had been prepared to have the meeting with the Fourth Respondent.
Ms Robertson put to Person A that her first instinct was probably to do something more
informal rather than formal and that it was not her first instinct that she wanted a formal
process and for the First Respondent to be sacked. Person A stated that her instinct at
the time was for the whole thing to never have happened. Thereafter it was to try and
find some sort of resolution that would enable her to return to work with minimal impact
and with as few people as possible knowing about the incident. Person A stated that
this would have been the ideal outcome for her. Ms Robertson puts to Person A that the
meeting had taken place with the Fourth Respondent on 27 February and that she had
not been left waiting anxiously for this as it had all been arranged as soon as she had
asked for it. Person A confirmed that this was correct. Person A also confirmed that at
that meeting both Person B and JB were present and Person A had a friend with her at
the meeting. Person A confirmed that at that meeting the Fourth Respondent had
allowed Person A to decide whether she wanted Person T to be informed of what has
happened and that he had been sensitive to her concerns about confidentiality. Person
A also agreed that the Fourth Respondent had predicted that when Person T was
informed, his reaction would be nothing other than sympathetic. Person A agreed with
Ms Robertson that throughout this process she remained at home on full pay and that
nobody had pressured her to come into work before she felt ready.
23.17 Ms Robertson put to Person A that there had been discussion about whether she would
be comfortable meeting the First Respondent for him to apologise but that nobody had
put any pressure on her to do so. Person A replied that there was no direct pressure but
it was suggested numerous times even though she had kept saying that she did not wish
to do this.
23.18 Ms Robertson put to Person A that the circle of people who were aware of this had been
kept very tight in accordance with the wishes expressed by Person A. Person A replied
that she had been told that the accounts people were aware and that the PR and
communications people also knew. Person A stated that she did not know whether that
was the case throughout the process or as a result of the non-disclosure agreement.
Person A confirmed that the Firm had agreed to pay what her own lawyer had put
forward as fair compensation. Ms Robertson put to Person A that she had not been cast
aside by the Firm and that her departure had been a loss to the Firm and a sadness to
those who had worked with her. Person A stated that she could only go by her own
perception and her feeling at the time was that she was cast aside because she did not
feel that she was as important to the Firm as protecting its own reputation and that of
the First Respondent. She stated that the whole situation was sad for everybody
involved.
24. Person B
24.1 Person B confirmed that her witness statement was true to the best of her knowledge
and belief.
34
24.2 Mr Treverton-Jones, in cross-examination, put to Person B that when the First

Respondent had asked Person A to stay behind in the hotel room he had done so in a
normal tone of voice. Person B agreed that he had used a normal tone of voice. Those
people leaving the room, including Person B, had felt that his request was unexpected
and they had lingered outside the room for a few moments wondering if it was a work-
related matter. However, the tone in which he had asked her to remain behind was
“respectable” and it had not flagged any alarm bells. Person B was asked whether she
recalled any conversation between herself and Person A before leaving the room as to
whether or not Person A would be okay. Person B stated that she did not believe there
had been any such conversation.
24.3 Person B told the Tribunal that the time that they were out in the corridor was short, a
couple of minutes at the most. They then knocked on the door and told Person A that
they had her room key. Mr Treverton-Jones put to Person B that there was evidence
from other people that they had been able to open the door without needing to knock.
He asked Person B if she was able to assist on that point. Person B stated that it was
certainly her recollection that they had knocked on the door. She could not recall who
had opened the door from the inside. Person B stayed outside the room and did not
re-enter it.
24.4 Person B told the Tribunal that she had felt relief that the consequences for the First
Respondent were not more severe. She felt comfortable that the Firm had treated the
incident exceptionally seriously and she did not think that the Firm had brushed it under
the carpet. Person B trusted in those who had been involved in that process. She stated
that she had felt “incredibly torn” as the First Respondent was somebody for whom she
had a lot of respect and she was also very conscious of the human repercussions of this
incident on him as an individual with the family and with children.
24.5 In cross-examination by Mr Coleman, Person B confirmed that at the time of the

incident she was the Firm’s graduate recruitment and development officer. Mr Coleman
put to her that as part of her expertise she would have had an awareness of how to deal
appropriately with issues of sexual harassment. Person B stated that she did not receive
training from the Firm in that regard. She had not encountered an incident of this nature
and would have sought support from colleagues who did have such expertise were the
situation to arise. Mr Coleman took Person B to a number of emails in which she spoke
highly of the First Respondent. Person B stated that this incident aside, she felt
incredibly grateful to have had the opportunity to work with someone who valued
people and everyone in the organisation so highly.
24.6 In response to questions from Mr Laidlaw, Person B confirmed that the computer
system at the time made it possible to restrict access to documents to named individuals.
The ability to restrict access was vested with the person who created the document and
saved it on system. Person B did not agree with the proposition that were she to have
sent a document to the Fourth Respondent, he would not be able to send the link on to
anybody else. The relevance of this question appeared to be that Person B had been off
work unexpectedly for at least a day around this time and Mr Laidlaw suggested that
this meant that on her return to work the only copies of the first Starbucks meeting notes
would have been hard copies. Person B stated that her understanding was that if
someone had been given access to a document they would only be able to access hard
copies but by being given security access they be able to access an electronic copy.
35
24.7 In response to questions from Ms Robertson, Person B confirmed that she had a broad
awareness of initiatives undertaken by the Second Respondent in the areas of diversity
and inclusion due to her role in the Firm. Person B felt that the Second Respondent’s
commitment to diversity was genuine.
24.8 Person B described her role in relation to Person A as providing support rather than
advice. Person A had been distressed after the incident and Person B believed she had
behaved in an empathetic way towards her. Person B believed that the Second
Respondent had taken the situation very seriously and had not ‘swept it under the
carpet’.
24.9 Person B confirmed that she regarded JB as someone who she trusted and who was
objective on account of not being as close to the First Respondent as others. Person B
told the Tribunal that her approach was to provide Person A with the reassurance that
she did not need to go through the process alone. She did not believe that Person A
would be victimised for having raised the matter.
25. First Respondent
25.1 The First Respondent confirmed that, subject to corrections contained in a document
entitled “Corrections to GS witness statement” his witness statement was true to the
best of his knowledge and belief.
The incident
25.2 In cross-examination by Mr Tabachnik the First Respondent agreed that the role of
Managing Partner included being a role model for all the employees of the Firm as well
as an ambassador for the organisation to the wider public.
25.3 The First Respondent told the Tribunal that he did not recall hugging Person A and
believed that if he had done so, he would recall it. He confirmed that he “certainly went
towards her to kiss her” and that in the course of doing that he may have put his hands
on her arms.
25.4 The First Respondent agreed that he was drunk, although he told the Tribunal that this
was not a precise term. The First Respondent agreed that he had asked Person A to stay
behind in his hotel room when everyone else was leaving. He further agreed that he
had, on his own case, made a pass at Person A involving compliments about her
appearance and kissing her on the neck, none of which Person A wanted to happen. The
First Respondent agreed that this was totally inappropriate and unacceptable for a
Managing Partner. The First Respondent denied that it was an abuse of position as he
had not believed at the time that his actions were unwanted. He now accepted that his
actions had not been wanted. The First Respondent accepted that on his own version
of events his conduct amounted to sexual harassment.
25.5 Mr Tabachnik took the First Respondent to the Firm’s Disciplinary Policy in force at
the time. The First Respondent agreed with the proposition that his behaviour during
the incident amounted to “unprofessional conduct”; “unacceptable behaviour to
colleagues or clients” and therefore “gross misconduct”. The First Respondent denied
that his conduct was incompatible with continuing to practise as a solicitor. The reason
36
he was not practising was the publicity from this case and the need to disclose it even
if there had been no publicity.
25.6 The First Respondent acknowledged that Person A had been extremely distressed by
the incident and he told the Tribunal that listening to her evidence had been a distressing
experience for him.
25.7 Mr Tabachnik took the First Respondent to the response to the Explanation with
Warning letter (“EWW”) dated 22 February 2019 in which it was stated “In conclusion
we wish to stress that the incident which occurred in 2012, although regrettable, was a
minor incident”. The First Respondent told the Tribunal that he did not think this was
an accurate description of the incident and that this had been clarified in the Answer
served in these proceedings. The First Respondent accepted that he had behaved
unprofessionally but told the Tribunal that was not “sufficiently knowledgeable” to
judge what was professional misconduct in the terms in which it was now being used.
25.8 Mr Tabachnik asked the First Respondent if he considered that public confidence was
diminished by “a drunken managing partner giving a junior associate an unwanted kiss
in his hotel room at 3.00 in the morning”. The First Respondent stated that he struggled
with the concept and had not considered it. The First Respondent stated that he believed
that he had acted with integrity during the early hours of 24 February 2012.
25.9 The First Respondent confirmed that he had not made a contemporaneous note of his
account of what had happened during the incident. The First Respondent denied that he
had been concerned to avoid generating a document that might be used against him
later.
25.10 The First Respondent denied telling Person A that he wanted to talk to her about
something and had simply said “would you like to stay?”
25.11 The First Respondent did not recall looking at the bed and he denied that Person A had
tried to recoil or that he had tightened his grip on her.
25.12 The First Respondent told the Tribunal that he did not recall hearing a knock at the hotel
room door and the incident ended when Person A’s mobile phone rang and she told him
that it was her boyfriend calling.
25.13 The First Respondent denied that he had told Person A that Person C was attracted to
her and that he was rescuing her from an awkward walk back to their respective rooms.
The First Respondent did not suggest that Person A was lying or exaggerating and told
the Tribunal that people could have different recollections of the same event even in
the immediate aftermath.
25.14 The First Respondent told the Tribunal that at the time he had perceived behaviour on
the part of Person A which he had taken as a signal. He agreed that there had been no
signal to him that she wanted physical contact, but stated that there “was no
discomfiture either”. It was put to the First Respondent that he had not suggested this
in any of his contemporaneous emails with the Fourth Respondent or anyone else. The
First Respondent accepted this.
37
After the incident
25.15 The First Respondent told the Tribunal that he had been keen to convey his apologies
to Person A and that he was desperate that she return to work. The First Respondent did
not believe that the apology that was read out to Person A at the meeting were his own
words and he did not consider it a “great statement to have been delivered”. He denied
distancing himself from the apology because of the effect that hearing it had on
Person A at the meeting.
25.16 Mr Tabachnik asked the First Respondent if he agreed with the description of himself
as a “notorious micromanager”. The First Respondent did not consider this a fair
description. He had a notorious attention to detail and could micromanage situations in
which he was responsible for something and lacked confidence in the person dealing
with it. The First Respondent told the Tribunal that when he read the emails in this case
he did not believe he had been micromanaging but rather asking questions and making
suggestions. He had read the emails as being in the context of the First Respondent
being in “deferral mode” to the Third and Fourth Respondents. He had regarded the
Fourth Respondent as being in charge until the matter was handed over to the Third
Respondent.
25.17 The First Respondent was asked about the email dated 28 February 2012 and timed at
20.29 from himself to the Fourth Respondent.
25.18 The First Respondent told the Tribunal that this was “not a very sensible email, and it
was a regrettable email”. Mr Tabachnik suggested that this was not an email from
someone who desperately wanted Person A to return to work. The First Respondent
replied that at the time he sent the email he was suffering from “enormous acute stress”,
was travelling on business and not capable of thinking clearly. He maintained that he
did want Person A to return to work.
25.19 Mr Tabachnik put to the First Respondent that on 1 March 2012 at 14.44 he had floated
the suggestion of Person A working from home, combined (at 15.04) with agreeing to
pay her until he had finished his term as Managing Partner. The First Respondent
explained that he had been trying to come up with options having been told that Person
A was unlikely to return to the office, but that his preference had remained for her to
return to work at the office.
25.20 The First Respondent denied wanting to “banish” Person A from the office so as to
avoid encountering her.
25.21 Mr Tabachnik asked the First Respondent if he agreed that during an investigation it
was dangerous for the alleged perpetrator to be communicating with one of the decision
makers rather than all the decision makers. The First Respondent did not agree with
that. He had made a conscious decision to confine his communications to the Third and
Fourth Respondents and did not believe it was appropriate to communicate with the
other decision makers. The First Respondent stated that he was being led through the
process by the Third and Fourth Respondents and did not think it was for him to form
judgements as to how the matter should be dealt with. He described the supportive
emails from the Fourth Respondent in particular as part of the “culture of being nice”
that operated at the firm. He denied that he had been “directing traffic”.
38
25.22 The First Respondent denied that he had sought to contribute to what legal advice
should be taken from Lewis Silkin into his own misconduct and told the Tribunal that
he had not been thinking in those terms. At a subsequent meeting with the Third
Respondent he had been told that following the legal advice there was a range of
possible outcomes, some of which were severe.
25.23 The First Respondent denied “buttering up” the Fourth Respondent by complimenting
him on his handling of the situation. The First Respondent had made clear in his emails
that the Fourth Respondent should take his guidance from the Third Respondent, not
from him. He told the Tribunal that he felt bad about the position that he had put the
Third and Fourth Respondent in but he regarded them as “strong professionals who
would do the right thing”.
25.24 The First Respondent was asked about the email entitled “Thoughts for your script” on
2 March 2012 at 16.58. Mr Tabachnik put to the First Respondent that this was him
making suggestions to one decision maker as to how he should advocate for the First
Respondent’s preferred outcome with the Executive Committee. The First Respondent
denied it was his preferred outcome as it was a sanction but accepted it was better than
being dismissed. He denied that it was a script, describing the email as thoughts. He
had no intention of asking the Third Respondent to do anything inappropriate and had
simply thought that he was helping him to achieve his (the Third Respondent’s) aim.
25.25 The First Respondent confirmed that he had offered to pay the damages to Person A
personally and that the Third Respondent had rejected this.
25.26 The First Respondent was asked about the ‘Rules for Gary’ email exchanges.
Mr Tabachnik suggested this was another example of the First Respondent advising as
to how the situation should be managed. The First Respondent told the Tribunal that he
was making suggestions and was never told to stop. He maintained that he was deferring
to the Third and Fourth Respondents.
25.27 Mr Tabachnik put to the First Respondent that his priority had been to put himself first,
the Firm second and Person A only insofar as it made it easier for him to remain at the
Firm. The First Respondent denied that this was a fair suggestion but accepted that he
was concerned about his own position.
25.28 In relation to dealing with the Executive Committee, Mr Tabachnik put to the First
Respondent that on 6 March 2012 he had been asked by the Third Respondent to
provide guidance as to how the members could be dealt with and he had not declined
to do so. The First Respondent agreed with this and explained that he had not declined
as he believed he ought to be co-operating with the people in charge of the situation.
He further explained that he had misunderstood what the Third Respondent had been
asking him to do, namely to provide guidance on how much detail to provide to KV,
which was narrower than what he had understood at the time.
25.29 The First Respondent agreed that on 7 March 2012 he had offered his thoughts as to
how EL could be persuaded to agree with the recommendation of a written warning,
the email having been prompted by the Third Respondent asking for the First
Respondent’s thoughts.
39
25.30 The First Respondent told the Tribunal that he had concerns about the matter becoming
public due to his role as Managing Partner. He also knew that Person A had concerns
about the matter becoming public, for the reasons she had set out in her evidence.
25.31 At the time of this situation the First Respondent had 15-16 months remaining of his
term as Managing Partner. The First Respondent agreed that his continuation in the role
would be of advantage to the Firm, both in terms of the First Respondent’s contribution
to its growth and in ensuring a smooth transition to his successor.
25.32 The First Respondent was taken to an email he had sent to the Third and Fourth
Respondents on 8 March 2012 at 11.46, in particular the reference to a possible concern
that Person A may think the resolution was a “whitewash”. Mr Tabachnik asked the
First Respondent if he considered that it could appear like a whitewash. The First
Respondent said it depended on how the matter was presented. If it was presented
properly it should not be seen that way. The First Respondent was asked about the
sentence that read “If she is happy with the action taken how can she return when she
has done this to the MP. Hope the latter will be the case”. Mr Tabachnik put to the First
Respondent that he hoped Person A would not think it was a whitewash, but that she
would feel so bad about what she had done to him that she would not want to return to
the Firm. The First Respondent told the Tribunal that this was “absolutely not” what he
had in mind. He was trying to put himself in the shoes of Person A. He continued to
hope that she would return throughout this period, which is why the email went on to
refer to Person T having a clear role, notwithstanding that he had also said during the
email exchanges that he was resigned to her leaving.
25.33 The First Respondent was asked about the role of JW and he agreed with the Second
Respondent’s description of him as dealing with the management of risk in England
and Wales within the LLP, “particularly in relation to ensuring compliance with the
SRA’s obligations and also in relation to English law”. He agreed that a person in the
role of General Counsel could be relied on not to engage in gossip. The First
Respondent was asked why, in that case, he had asked the Fourth Respondent, in his
email of 9 March 2012 at 22.44, to ensure that Mr Davies of Lewis Silkin did not
mention the issue to JW. The First Respondent’s answer was not entirely clear on this
point, but he did tell the Tribunal that he would not have sought to interfere if the Third
Respondent had told him that JW was to be brought into the circle of people who knew
about this. The First Respondent did not want JW to find out “by accident”.
25.34 The First Respondent was asked about the warning letter that he received in relation to
the incident. The First Respondent told the Tribunal that he had not kept it as he had
nowhere to keep it safe. He did not recall being given a signed version. The First
Respondent was given a version and he had made some comments in relation to that.
He had provided those comments in an email of 27 March 2012 at 20.42. The First
Respondent told the Tribunal that he had been asked to give comments from his
perspective as the accused person.
25.35 The First Respondent denied breaching Principles 2, 6 and 8 and denied that he had
improperly sought, by reason of his seniority in the firm, to influence the conduct and
outcome of the investigation. He further denied that he had enlisted the Fourth
Respondent to try to keep JW in the dark in the way characterised by Mr Tabachnik
and again denied breaches of Principles 2, 6 and 8 in relation to this allegation.
40
25.36 The First Respondent accepted that he had not self-reported to the SRA. He had not
considered it a regulatory matter. The First Respondent denied that he had breached
Principles 2 and 7 or failed to achieve Outcome 10.4.
25.37 In cross-examination by Mr Coleman, the First Respondent spoke very highly of the
Third Respondent’s character and integrity.
25.38 In relation to the drafting of the warning letter and the comments he had made, the First
Respondent agreed with Mr Coleman that it was an “opportunity to make sure that your
perspective on events was taken into account before finalising the letter” and not “as an
opportunity to direct or instruct the terms of the letter”. The First Respondent agreed
with Mr Coleman’s proposition that some of the comments he had made were not
accepted in the final draft of the letter.
25.39 The First Respondent agreed that in addition to the letter, he had been the subject of
restrictions on the consumption of alcohol for the remainder of his tenure as Managing
Partner, which was in itself to be shortened. The First Respondent had also been
expected to make a significant donation to charity, which he had done in the sum of
£20,000 to a charity recommended by JB. The First Respondent had complied with all
he was required to do and there had been no further incidents or complaints while he
was at the Firm.
25.40 The First Respondent agreed with the suggestion that he had not chosen the Third
Respondent to investigate the matter. When he had met the Third Respondent on
29 February 2012 he had not sought to control or limit which other partners the Third
Respondent spoke to. The Third Respondent had outlined a range of options to the First
Respondent, that had included him having to step down as Managing Partner and losing
his job. The Third Respondent had given no assurances at that dinner as to the outcome.
He had understood the Third Respondent to be in charge and “the responsible decision-
maker”, by which he meant that the Third Respondent would decide on the processes
that would be followed and who would be spoken to. He would be assisted in this by
the Fourth Respondent.
25.41 The First Respondent had initially been upset upon hearing that the global Firm would
be involved in the final decision, though he had swiftly accepted it. He agreed with
Mr Coleman that the Third Respondent had not been deflected by the First
Respondent’s distress.
25.42 In relation to the “Thoughts for your script” email, Mr Coleman suggested that the email
was written when the First Respondent was looking ahead to a time when the decision
had been taken by the Firm and was to be presented to the global Firm for approval.
The First Respondent denied this. It had not been his intention that the Third
Respondent would use it as a script, it was for him to do as he saw fit, as was stated at
the start of the email.
25.43 Mr Coleman took the First Respondent through the email exchanges on 5 March 2012.
The First Respondent agreed that he had found the Third Respondent to be kind and
empathetic when dealing with him. He further agreed that the Third Respondent was
attempting to ensure that the Firm responded fairly and appropriately to the First
Respondent’s admitted misconduct and he did not see him as his advocate.
41
25.44 In relation to the involvement of JW, the First Respondent confirmed that there was no
rule or policy within the Firm that required disclosure of this matter to him.
25.45 Ms Robertson asked the First Respondent if he had understood that the Third
Respondent’s approach was for the partner members of Mancom to form a view and
then report that view to the global Firm. The First Respondent confirmed this was the
case.
25.46 The First Respondent further confirmed that if the decision had been that he should
leave the Firm, the first stage would have been a decision by the partner members of
Mancom, followed by an affirmative vote by the partner members of the Firm.
25.47 The First Respondent confirmed what he had stated in his witness statement that he had
not read the email from PE of 6 February 2012 entitled “Risk Reporting Reminder” all
the way through before forwarding it.
25.48 Ms Robertson put to the First Respondent that although there may have been some lack
of clarity in 2012 as to the policy, it would have been sensible to have involved the
global General Counsel in such a matter. The First Respondent appeared to agree, but
made the point that given that the chair of the global Firm was involved, one might
have assumed that he would take that step as appropriate.
25.49 Ms Robertson put to the First Respondent that he was mistaken in his oral evidence
when he had said that the Third Respondent had had discussions with Mr Strivens or
PR before he wrote the “thoughts for your script” email on 2 March 2012 and that his
witness statement had been a vague on this point. The First Respondent denied this and
told the Tribunal that his witness statement was not intended to be vague.
25.50 Ms Robertson suggested that another possibility was that the First Respondent did
appreciate that Mr Strivens and PR had been spoken to and that his email was an attempt
at “mapping out suggested points” to be put to the global Firm. The First Respondent
denied this.
25.51 Ms Robertson put to the First Respondent that the emails may be perceived by someone
in Mr Strivens’ position as inappropriate. The First Respondent agreed and told the
Tribunal that the emails “need quite a lot of contextualisation”. He did not disagree that
Mr Strivens’ genuine reaction upon reading them would have been one of shock.
25.52 Once the decision had been made and required approval from the global Firm, the First
Respondent denied Ms Robertson’s suggestion that it was inappropriate to have sent
emails suggesting how EL may be brought on board. The First Respondent told the
Tribunal that he had not believed he was saying anything that the Third Respondent did
not already believe and in any event he knew that the Third Respondent would only do
what he thought was appropriate. In hindsight, the First Respondent wished he had not
sent any emails.
25.53 Mr Laidlaw asked the First Respondent if he had understood the Third and Fourth
Respondents to have individual roles as investigators and decision-makers or that both
were investigators and decision makers. The First Respondent stated that he did not
recall thinking deeply about the roles that people were playing. To the extent that he
42
had thought about it, he did not believe he would have considered the Fourth
Respondent to be a decision-maker.
25.54 The First Respondent spoke highly of the Fourth Respondent and agreed that he was
collaborative in his approach to his work. He also described the Fourth Respondent as
having been “a somewhat insecure type”.
25.55 Mr Laidlaw put to the First Respondent that it had been a bit of a “rollercoaster” for the
Fourth Respondent in dealing with him, in that the First Respondent could go from
angry to conciliatory in the space of a couple of hours. The First Respondent stated that
it was a rollercoaster for everyone to a degree but he had been very surprised when he
read that the Fourth Respondent had believed that he (the First Respondent) had been
angry with him.
25.56 The First Respondent confirmed that he had not been alerted to Person A’s complaint
by the Fourth Respondent until after his first meeting with Person A on the Monday
afternoon. There could therefore have been no co-ordination of his approach to Person
A between the First and Fourth Respondents.
25.57 The First Respondent denied the suggestion that he had been anxious that any legal
advice that was taken was internal rather than external. The First Respondent agreed
that the Fourth Respondent had not shared the contents of the legal advice from Lewis
Silkin that day. He further agreed that the Fourth Respondent had given no advance
notice to the First Respondent of his decision to go and see the Third Respondent after
receiving the legal advice from Lewis Silkin.
25.58 Mr Laidlaw put to the First Respondent that the apology that was read to Person A was
dictated by the First Respondent to the Fourth Respondent. The First Respondent did
not recall dictating this document. The Fourth Respondent would not have put the
apology together without having had conversations with the First Respondent but the
suggestion that the Fourth Respondent would have sat and taken dictation from the First
Respondent was denied.
26. Third Respondent
26.1 The Third Respondent confirmed that his witness statement was true the best of his
knowledge and belief.
26.2 In cross examination by Mr Tabachnik the Third Respondent agreed that this had been
a serious matter which required careful handling. He told the Tribunal that the decision
to give the First Respondent a final written warning was “very finely balanced”.
26.3 The Third Respondent told the Tribunal that it was possible that Person A and the First
Respondent each had their own, honestly and sincerely held, view as to what had
happened in the hotel room. The Third Respondent had not concluded that the First
Respondent had lied when giving his account at the time. The Third Respondent told
the Tribunal that he and the Fourth Respondent had been faced with two different
accounts and agreed that it was possible for people to have different recollections of the
same event. When the First Respondent was given the warning letter he had not been
told that it was on the basis that Person A’s account was being preferred.
43
26.4 Mr Tabachnik asked the Third Respondent why the warning letter sanctioned the First
Respondent for inviting people to his room late at night rather than mentioning the
incident. The Third Respondent accepted that the letter should have made reference to
this, but denied attempting to downplay the incident.
26.5 The Third Respondent told the Tribunal that he considered the First Respondent’s offer
to pay the damages of any settlement agreement to be inappropriate and distasteful. He
was concerned that it would cause practical difficulties in addition to the
unattractiveness of the idea that “he was buying himself out of a problem”. In relation
to the charity donation, this had been suggested by EL and agreed to by the First
Respondent. Mr Tabachnik asked if there had been discussion about imposing a
financial penalty on the First Respondent. The Third Respondent stated that there had
not.
26.6 Mr Tabachnik asked the Third Respondent if he agreed that before deciding on a
sanction it was important to have a full and effective investigation of the facts. The
Third Respondent broadly agreed but stated that the investigation into the facts had to
be proportionate. This matter had needed to be dealt with quickly as the longer Person
A was away from work the harder it would have been for her.
26.7 Mr Tabachnik asked the Third Respondent what policies of the Firm he had consulted
during his investigation. The Third Respondent stated that he had not consulted any
policies of the Firm as it was obvious that such behaviour was not tolerable.
26.8 The Third Respondent confirmed that Person A was not asked to write a statement of
any sort and had not been asked to verify the note made of the meeting on
27 February 2012. He had believed her account and did not want to distress her further.
Mr Tabachnik put to the Third Respondent that it would not have been burdensome to
ask Person A to do this. The Third Respondent did not know if it would or would not
have been, but if it had been deemed necessary there were more steps that could have
been taken.
26.9 The Third Respondent also confirmed that the First Respondent was not asked to write
down his version of events and neither were any of the other individuals present around
the time of the incident. There was also no written report prepared for the other decision
makers in the investigation and no clear record of the factual findings.
26.10 The Third Respondent further agreed that there had been nothing in writing setting out
the full range of potential sanctions, but he told the Tribunal that the full range had been
discussed, save for fines which were not considered.
26.11 The Third Respondent agreed with Mr Tabachnik’s suggestion that one of the reasons
for having written reports would be so that people could review, reflect and re-read the
document. He also agreed that there was a risk that by recounting orally what the Fourth
Respondent had told him, some details could be missed out. The Third Respondent did
not believe that this had in fact occurred but he accepted the criticism.
26.12 The Third Respondent had not considered BA to be a decision-maker but a consultee
as she was not on the line of reporting to the global Firm that KV was. However, if BA
had raised concerns then this would have caused the conversations to continue.
44
26.13 Mr Tabachnik asked the Third Respondent if he was proud of the investigation, looking
back at it now. The Third Respondent stated that he was proud of parts of it. He
described it as a “very very difficult situation to manage and I think we treated Person
A with respect throughout it and tried to do our best by her, and we conscientiously
dealt with the problem that presented itself to us and tried to do the right thing”. He
told the Tribunal that his priority had been to deal with the matter “properly, fairly and
sensitively”.
26.14 The Third Respondent told the Tribunal that the First Respondent had not attempted to
have any real involvement in the investigation into the facts other than giving his
account of what had occurred. Mr Tabachnik asked the Third Respondent if he agreed
that an alleged sexual harasser should be kept at arms’ length from the process. The
Third Respondent stated that such a person had to be prevented from interfering with
the process and damaging the quality of decision-making.
26.15 The Third Respondent agreed that the situation was of great importance to the Firm. In
response to the question as to whether it was also important to public confidence in the
profession, he stated that this was “more nuanced” and probably a matter for
submissions.
26.16 The Third Respondent told the Tribunal that he had not reported the matter to the SRA
as this did not present itself as serious misconduct in the same way as dishonesty for
example. It had therefore not crossed his mind that it should be reported. If he had
reported it this would have been a defensive report and would not have changed how
the investigation was carried out.
26.17 The Third Respondent told the Tribunal that he had not wanted the “process to drive
the outcome” in that a formal process that had lacked confidentiality would have led to
the outcome that the First Respondent would have left the Firm without the partners
having the ability to make a decision. Person A would probably also have left.
26.18 The Third Respondent confirmed that he had described the First Respondent as a
“notorious micro-manager”. On reviewing the volume and tone of emails the Third
Respondent had been surprised at the number of them. The Third Respondent told the
Tribunal that some of the First Respondent’s emails were inappropriate. Mr Tabachnik
put to the Third Respondent that he could simply have sent the First Respondent an
email telling him to stop emailing. The Third Respondent accepted that he could have
done so but he did not think it was necessary. The First Respondent was under a lot of
pressure and “needed to let off steam” and to feel that he had “a degree of control, even
if that was illusory”. The Third Respondent had hoped that the First Respondent would
have picked up from the tone of his email in reply that they were not welcome.
26.19 The Third Respondent told the Tribunal that he had not had a conversation with the
Fourth Respondent on 29 February 2012 about appointing someone as the First
Respondent’s official representative in this matter. The Third Respondent accepted that
it would have been better to have arranged some support to allow the First Respondent
to let off steam in that way.
45
26.20 The Third Respondent denied that his phrase in his email to the First Respondent of
29 February 2012 at 23.06 in which said that he was “increasingly confident we can
land this in an okay place” was anything more than an empty reassurance, which he
wished he had not provided.
26.21 On 1 March 2012 there had been a meeting in the Fourth Respondent’s office between
the First, Third and Fourth Respondents. It lasted between 30-60 minutes. The First
Respondent was not taken through Person A’s account line by line. Later that evening
at 19.58 the First Respondent had emailed the Third and Fourth Respondents stating
“Thank you. A plan being created makes me feel better. I feel very supported”. The
Third Respondent understood the ‘plan’ to be the process in relation to KV.
26.22 In relation to the “thoughts for your script” email from the First Respondent, the Third
Respondent told the Tribunal that he had been irritated by this on a number of levels.
In his witness statement he had described it as an attempt to “coach” him in relation to
the presentation of the proposal to the global Firm. The Third Respondent told the
Tribunal that he did not recall having read the email in full at the time. He accepted that
in his response to the EWW letter he had said that he had read the emails. The Third
Respondent denied that this was a change to his evidence, describing it as an
elaboration. Mr Tabachnik suggested to the Third Respondent that this type of email
was predictable given the failure to draw boundaries. The Third Respondent questioned
whether it was inevitable but conceded that there were inherent risks in not having a
more formal process.
26.23 Mr Tabachnik asked the Third Respondent about the circumstances in which the
reduction in tenure of the First Respondent as Managing Partner by three months was
discussed. The Third Respondent thought it might have come up on 1 or 2 March but
could not recall clearly. Mr Tabachnik took the Third Respondent to the part of the
email timed at 10.47 on 3 March 2012 which read:
“To give you direction, he is content with restrictions and a written warning of
some type plus our plans to accelerate succession planning etc.”
26.24 Mr Tabachnik put to the Third Respondent that if the “he” in that sentence was the First
Respondent, this would be inappropriate for the Third Respondent to give that advice
to the other decision-makers. The Third Respondent agreed that it would have been but
told the Tribunal that “he” was KV, not the First Respondent.
26.25 The Third Respondent was taken to the email of 4 March 2012 at 22.13 and the sentence
“we haven’t focussed enough on comms generally and how to play press around
soundings etc. I think we have a bit of time to get that right but agree we need to get
onto that side now”. Mr Tabachnik put to the Third Respondent that this was an
invitation to carry on contributing, this time on the issue of communications. The Third
Respondent told the Tribunal that it was not intended to be.
26.26 Mr Tabachnik took the Third Respondent through a number of emails from the First
Respondent. The general thrust of the questions were along similar lines and the Third
Respondent’s position was that he had not considered involving the First Respondent
as being inappropriate, though he would not do so if the same situation presented itself
again. The Third Respondent accepted that he had sought guidance from the First
46
Respondent about KV in his email of 6 March 2012 at 12.48. The Third Respondent
told the Tribunal that he had not known KV very well and was possibly being “a bit
needy” and “asking for too much support”.
26.27 Mr Tabachnik put to the Third Respondent that the strategy for dealing with Person A
was to put the onus on to her to say what she wanted to happen once the First
Respondent’s situation had been decided. The Third Respondent told the Tribunal that
the approach was to try to get Person A comfortable enough to return to work. The
Third Respondent was sorry that Person A had perceived the meeting in the way she
had described.
26.28 In relation to the drafting of the written warning letter, the Third Respondent told the
Tribunal that inviting the First Respondent to comment on the letter was part of the
process and a reasonable thing to have done.
26.29 Mr Tabachnik asked the Third Respondent if he would have informed PE had he read
the emails advising that such a step should be taken. The Third Respondent was not
sure he would have done. He had informed the Executive Committee and if they had
said to inform PE he would have done so. The Third Respondent had reported up his
management line to the Executive Committee and felt that was sufficient.
26.30 In relation to JW, the Third Respondent had not wanted to involve him. He had been in
post for about a year. He was worried that if the First Respondent remained at the Firm
that it could harm their working relationship.
26.31 In cross examination by Mr Treverton-Jones, the Third Respondent told the Tribunal
that the First Respondent was generally a straightforward person and this was
something he admired in him. In his dealings with the First Respondent over the years
he had found him honest and decent.
26.32 Upon hearing of the incident from the Fourth Respondent, the Third Respondent agreed
that their considerations had included the need to investigate the incident and resolve
it, and the need to ensure that Person A’s position and best interests were addressed
throughout. The First Respondent, Person T, the Fourth and the Third Respondent all
wanted Person A to return to work. The Third Respondent agreed with the description
of the position being a binary one in which the First Respondent either left the firm or
he would be permitted to remain as Managing Partner.
26.33 The Third Respondent agreed that he had selected a method of dealing with the situation
that was relatively informal and that he would keep the First Respondent in the loop
because of his anxiety levels and temperament. He had not sought to resolve the
differences in the accounts of the incident as they were not significant enough to make
a difference to the outcome. The Third Respondent told the Tribunal that he had formed
his provisional view that a written warning would be appropriate, rather than the First
Respondent leaving the Firm, by the end of 1 March 2012.
26.34 Mr Treverton-Jones put to the Third Respondent that his role had changed on
6 March 2012 as the provisional view about the resolution of this matter became a final
view. The Third Respondent agreed. He was at this point promoting the LLP’s preferred
outcome and hoped the global Firm would accept it.
47
26.35 In relation to the “Thoughts for your script” email, Mr Treverton-Jones put to the Third
Respondent that it had not been an attempt to coach him but genuine thoughts for when
he came to discuss matters with the global Firm. The Third Respondent maintained that
he believed it was coaching. It was an unsolicited email and it was unwelcome. He
acknowledged that the First Respondent had stated at the outset “Thought it might save
some time for me to jot down points I would make although you must be happy to
convey it all as you see fit” and it ended with “over to you”. The Third Respondent
maintained that the email set out things that the First Respondent would have liked him
to say to KV or EL.
26.36 The Third Respondent agreed that the First Respondent had effectively sought
clearance from him before he approached any of the other decision-makers.
26.37 In relation to the question of alcohol restrictions, Mr Treverton-Jones put to the Third
Respondent that there was nothing remotely improper about the First Respondent
playing a part in suggesting workable conditions that he would abide by. The Third
Respondent agreed and told the Tribunal that the purpose of the discussions over the
weekend on this topic was to have them available for decision makers on the Monday.
26.38 Mr Treverton-Jones put to the Third Respondent that the First Respondent would know
that he was not someone who would be pushed around or improperly influenced. The
Third Respondent agreed. Mr Treverton-Jones suggested to the Third Respondent that
he had sought to put as much “clear water” as possible between himself and the First
Respondent in his witness statement. The Third Respondent stated that he had tried to
give his account of what had occurred to the best of his ability.
26.39 Mr Treverton-Jones put to the Third Respondent that nothing the First Respondent had
sent by way of emails was treated as being unwelcome. The Third Respondent said that
some were unwelcome but accepted that he had not told the First Respondent this in so
many words. He had not engaged with the emails he was not happy about and he had
pushed back on some of the ground rules for how he felt the situation should be dealt
with.
26.40 Mr Treverton-Jones referred the Third Respondent to the EWW letter dated
8 February 2019 sent by the current Managing Partner of the Firm, Alex Chadwick.
That letter referred to a betrayal of trust by the First, Third and Fourth Respondents and
to the procedures having been subverted. The Third Respondent confirmed that along
with the First Respondent he totally rejected that accusation.
26.41 Mr Treverton-Jones suggested to the Third Respondent that on 1 March 2012 he had
reached a provisional conclusion that the incident should be dealt with by way of a final
written warning, associated rules and a possible acceleration of succession planning
and that he had acted in good faith throughout. The Third Respondent agreed.
Mr Treverton-Jones further suggested that the Third Respondent had communicated the
likely result to the First Respondent before the “thoughts for your script” email. The
Third Respondent agreed with this too.
26.42 In response to questions put to him by Mr Laidlaw, the Third Respondent told the
Tribunal that the investigation had been in the hands of the Fourth Respondent for at
least two days and the shape of it had been fixed by the Fourth Respondent as the HR
48
expert. Ordinarily it would have remained with him but because it involved the
Managing Partner the responsibility for the investigation in to the First Respondent’s
conduct ended up with the Third Respondent. The Fourth Respondent continued to
remain an integral part of the investigation. The Fourth Respondent was not a decision
maker but was influential and respected and his views would have been listened to. The
Third Respondent also drew substantially on SG’s expertise in employment law.
26.43 Mr Laidlaw put to the Third Respondent that his initial instincts had been correct in
relation to his decision not to interview Person A again and that he had been overly
self-critical in stating otherwise in his witness statement. The Third Respondent
acknowledged the point.
26.44 The Third Respondent told the Tribunal that neither he nor the Fourth Respondent had
been in any doubt that the investigation of Person A’s grievance was full and complete.
He agreed with Mr Laidlaw’s suggestion that the speed at which it was conducted was
consistent with providing the best chance of Person A returning to work.
26.45 The Third Respondent agreed that the Fourth Respondent was polite, courteous and
collaborative to work with. The Fourth Respondent had sat on the management
committee and had expressed his views and judgements on all matters, not limited to
HR. The Third Respondent agreed that the Fourth Respondent’s style was to work with
people and he was keen on coaching and self-awareness. He was very comfortable with
how the Fourth Respondent had dealt with Person A.
26.46 In relation to the First Respondent, the Third Respondent told the Tribunal that his use
of the word “notorious” was possibly unfair, but he did like to micro-manage and this
was no secret. The Third Respondent agreed with Mr Laidlaw’s suggestion that
allowing the First Respondent to express his views did not mean that he shared those
views or took up an approach suggested by the First Respondent. Neither the Third nor
Fourth Respondent were deflected from doing the right thing.
26.47 The Third Respondent confirmed that he had formed a provisional conclusion at a
relatively early stage that the “least bad option” was that of a written warning.
26.48 The Third Respondent told the Tribunal that the Fourth Respondent had given him a
summary of the legal advice that he had received from Lewis Silkin. He recalled that
this included being told that most employees would be dismissed for this sort of incident
but equally a final warning was defensible and that care should be taken about the
number of people who would be spoken to about this event. In relation to the First
Respondent’s role as Managing Partner, a duty of care to both the First Respondent and
Person A, management of future risk and escalation of the matter to partner-level, the
Third Respondent could not recall if this specifically arose out of the legal advice but
it did come up in the discussion with the Fourth Respondent. The Third and Fourth
Respondent agreed quickly that it needed to be escalated to the global level, hence the
involvement of KV. Mr Laidlaw put to the Third Respondent that he had asked the
Fourth Respondent to seek further legal advice to clarify whether the issue needed to
be escalated straight to EL or should go through the liaison Executive Committee. The
Third Respondent could not recall but agreed this was possible.
49
26.49 Ms Robertson put to the Fourth Respondent that the positions of the Second and Fourth
Respondent were that in hindsight there were aspects of the investigation that could
have been handled better but that it did not amount to professional misconduct as the
Fourth Respondent had not succumbed to improper influence on the part of the First
Respondent. The Third Respondent agreed.
26.50 The Third Respondent described his role in the area of diversity while working at the
Firm and his commitment to it. The First Respondent’s behaviour had been contrary to
the Third Respondent’s own values and those of the Firm.
26.51 The Third Respondent accepted that there had been some lack of clarity in the process
about the role of Person T. He further agreed that SG’s role was as someone who could
provide in-house employment law expertise. The Third Respondent told the Tribunal
that he also wanted the employment advice to be from a woman.
26.52 The Third Respondent confirmed that he had not had any particular policies or
procedures drawn to his attention. There was not going to be any debate as to whether
the First Respondent’s behaviour was appropriate or not.
26.53 The Third Respondent did not recall telling Mr Strivens to limit written
communications on the matter. If he had done so it would have been because of the
focus on confidentiality rather than a “litigator’s instinct” as suggested by
Ms Robertson.
26.54 Ms Robertson put to the Third Respondent that Mr Strivens had been told of the facts
in very broad terms and that the Third Respondent had resisted going into more detail
when pressed. The Third Respondent rejected the suggestion and told the Tribunal that
he had given Mr Strivens the details. He further rejected the suggestion that he was in
“advocacy mode” when presenting the facts to Mr Strivens and PR. Ms Robertson made
clear that she was not suggesting that the Third Respondent had deliberately or
intentionally misled Mr Strivens.
26.55 Ms Robertson put to the Third Respondent that it would have been sensible to involve
the global General Counsel, PE, because this would have dealt with the concerns he
had regarding involving JW. The Third Respondent agreed. Ms Robertson suggested
that the other aspect of this was that the involvement of PE would have helped the Third
Respondent impose a greater degree of formality on the process. The Third Respondent
stated that this was a possibility but he had a lot of respect for KV’s judgement in terms
of how the global Firm should be involved.
26.56 The Third Respondent confirmed that there were no equivalent emails to those sent to
the Third and Fourth Respondent by the First Respondent, sent to any of the other
partners involved in the process to his knowledge. When the First Respondent had made
contact with those individuals it was to apologise.
26.57 Ms Robertson put to the Third Respondent that he had made an error of judgement in
not informing Mr Strivens that the First Respondent appeared to be “mapping out the
outcome”. The Third Respondent told the Tribunal that he did not think it was an error
at the time because the First Respondent’s emails had not influenced him or put the
50
process at risk. The Third Respondent disagreed with the suggestion that Mr Strivens
did not have the full picture.
26.58 In re-examination, Mr Coleman asked the Third Respondent if there was anything
regarding the governance of the firm that would have prevented Person T being a
co-decision maker. The Third Respondent stated that there was not. The same applied
to SG.
27. Peter Strivens (called by the Second Respondent)
27.1 Mr Strivens confirmed that his witness statement was true. At the outset of
cross-examination by Mr Tabachnik, Mr Strivens told the Tribunal that he had not
recently read the response to the EWW letter sent on behalf of the Second Respondent.
He could not recall if he had read it at all, but he probably had. He had not seen it in
draft before it was finalised and did not recall being involved in the process at all. He
had left the partnership in 2017 and was now a consultant.
27.2 Mr Strivens told the Tribunal that his initial views about matters, which were of shock
and anger, had changed after additional disclosure of further emails was made in
October 2019.
27.3 Mr Strivens told the Tribunal that the topic of reporting the matter to the SRA in 2012
did not come up and did not occur to him. He had therefore not discussed this aspect
with the Third Respondent or with PR. Mr Strivens did not recall having any
discussions with the Fourth Respondent in the process. He had two or three discussions
with the Third Respondent but no documents were exchanged between him and the
Third Respondent relating to the incident.
27.4 Mr Strivens confirmed that his view was that the First Respondent, during the incident,
had abused his power as Managing Partner and one of the options that was considered
was that he would be asked to leave the Firm.
27.5 Mr Strivens told the Tribunal that he assumed that the meeting on 6 March 2012
included the Third Respondent, PR and himself as well as Person T and SG. Mr Strivens
had seen a diary entry to the effect that he attended the meeting but he had no
recollection of having done so or having ever discussed the situation with Person T or
SG.
27.6 Mr Strivens was referred to a letter sent by the Second Respondent to the SRA dated
13 April 2018 in response to the s44B Notice. Mr Strivens had no recollection of this
letter and was not sure whether or not he had read it.
27.7 Mr Strivens told the Tribunal that he had no involvement in the preparation of formal
defences to these proceedings.
27.8 Mr Strivens confirmed that he had not notified PE of the investigation or the
conclusions in respect of the incident. He was not aware of anyone else having done so
either.
51
27.9 Mr Tabachnik took Mr Strivens to the email in which it was stated that an allegation of
harassment against a partner had to be reported to the General Counsel. He suggested
to Mr Strivens that if he had read this document at the time he would have reported the
incident to PE. Mr Strivens told the Tribunal that this was not necessarily the case as
he would have seen this “as an exercise in ensuring that the global Firm was made
aware and that local officers were not concealing these sorts of matters at the local
level”. He had also not informed JW but had no detailed recollection of discussions
with the Third Respondent or anyone else on the topic.
27.10 Mr Strivens agreed that an alleged perpetrator should not attempt to manage the conduct
of an inquiry into his own conduct and that it would be good practise to be kept at arm’s
length from the process. He was unclear as to what Mr Tabachnik meant by the phrase
“must not be seen to be” attempting to manage the process.
27.11 In response to questions from Mr Treverton-Jones, Mr Strivens confirmed that he had

enjoyed an excellent working relationship with the First Respondent. The First
Respondent had been an effective Managing Partner who was very honest and
straightforward.
27.12 The question of a “yellow card” was discussed at the first meeting Mr Strivens had with
the Third Respondent as part of a wide-ranging discussion about the various options.
27.13 In response to questions put by Mr Coleman, Mr Strivens spoke highly of the Third
Respondent. He agreed that the Third Respondent had been doing his best under
difficult circumstances.
27.14 Mr Coleman put to Mr Strivens that there was no clear policy in 2012 that all cases of
unacceptable behaviour needed to be reported to the General Counsel. Mr Strivens
agreed to the extent that this was a fairly new notion which was not clearly understood
or consistently followed.
27.15 Mr Strivens answered a number of questions about the constitution, articles and
governance arrangements of the Firm, including the mechanisms for expulsion. He
agreed with the suggestion by Mr Coleman that if the First Respondent had been
expelled it would have needed to be ratified by 80% of the voting members and as such
impossible to keep the incident confidential within the Firm.
27.16 Mr Strivens told the Tribunal that he had been interviewed as part of the Firm’s review
of matters in 2018. He disagreed with the findings of that review and maintained that
he had acted properly. He denied Mr Coleman’s suggestion that his response had been
to minimise his personal responsibility for the decision-making regarding the First
Respondent.
27.17 Mr Strivens agreed that the process adopted in the 2012 investigation was an informal
process but that it had seemed appropriate at the time. In hindsight a more formal
process would have been helpful.
27.18 Mr Coleman put to Mr Strivens that he had misremembered when he had stated in his
witness statement that “The conduct described in the memorandum is more serious than
I had understood at the time”. Mr Strivens accepted that this might be the case.
52
Mr Coleman put to Mr Strivens that he was mistaken when he suggested that the Third
Respondent had resisted going into further detail when giving the account of the
incident. Mr Strivens maintained that this was how he recalled the conversation.
Mr Strivens agreed that if he had wished to seek further details he could have done so
at the next meeting and accepted that he had not persisted as much as he felt he ought
to have done.
27.19 Mr Coleman referred Mr Strivens to the meeting at 17.30 on 6 March 2012. Mr Strivens
did not disagree with the account as put by Mr Coleman but had limited specific
recollection.
27.20 Mr Strivens agreed that the matter of sanction was discussed at length between himself
and the Third Respondent. Mr Coleman suggested that if the Third Respondent had
indicated that they should ensure their written communications be limited, which he did
not recall saying, this would have been in order to protect confidentiality. Mr Strivens
agreed.
27.21 Mr Coleman put to Mr Strivens that the Third Respondent recalled telling him and the
other decision-makers that the First Respondent was trying to exercise some
management over the process. Mr Strivens did not recall this, though he did recall the
Third Respondent saying that the First Respondent was being difficult and was not easy
to deal with. Mr Strivens recognised that the Third Respondent had picked up a
“poisoned chalice” in dealing with this situation but he had no concern that the Third
Respondent was unable to deal with it.
27.22 Mr Strivens did not recall being present at any meeting at which the contents of the
warning letter were discussed.
27.23 Mr Strivens told the Tribunal that he did not recall any discussion about a procedure or
compliance with a procedure. By the time he got involved the procedure was under way
and he accepted it.
28. Fourth Respondent.
28.1 The Fourth Respondent confirmed that his witness statement was true to the best of his
knowledge and belief.
28.2 The Fourth Respondent told the Tribunal that he would always have a notepad with him
in any meeting, both to take notes and to refer to as an aide memoire. He had taken
notes of every discussion and meeting that he had been involved in.
28.3 In cross-examination by Mr Tabachnik the Fourth Respondent confirmed that he had

reported directly to the First Respondent and worked closely with him in the years
leading up to the events in question. He described himself as the First Respondent’s
“Second in command” in relation to “people issues” but not in relation to the running
of the Firm. The Fourth Respondent told the Tribunal that he had not previously
encountered a case of alleged sexual misconduct.
53
28.4 The Fourth Respondent confirmed that he had left the Firm in 2014. He had felt
victimised by the Firm for his involvement in this investigation, though he had not
brought a formal claim to that effect.
28.5 The Fourth Respondent told the Tribunal that he had spoken to JD from Lewis Silkin
and following that meeting he had involved the Third Respondent. At that point he
handed the investigation over to the Third Respondent. The Fourth Respondent saw his
role from that point as dealing with Person A and he did not have any involvement in
the decision-making in terms of outcome in relation to the First Respondent. The
investigation had proceeded on the basis that the Third and Fourth Respondents
accepted Person A’s account of events.
28.6 Once the Third Respondent had taken over the investigation, the Fourth Respondent
told the Tribunal that he had considered his role to be passive. The Third Respondent
would keep him updated but would not be seeking his view of matters.
28.7 The Fourth Respondent did not accept the description of his role was being the main
source of advice and support to the Third Respondent in the process. The Fourth
Respondent told the Tribunal that he had a conflict of interest and it would have been
inappropriate for him to have a view on an outcome relating to the First Respondent as
he reported to him. The Fourth Respondent had offered advice to the Third Respondent
on HR matters but not the sanction that would be applied to the First Respondent. The
Fourth Respondent told the Tribunal that he saw his involvement as purely
administrative after the call with KV on 6 March.
28.8 The Fourth Respondent told the Tribunal that he had “upheld” Person A’s complaint in
that her account of events had been accepted and the investigation had proceeded on
that basis. He drew a distinction between upholding the complaint and being a decision-
maker in relation to how the First Respondent would be dealt with. He denied the
suggestion by Mr Tabachnik that he had “overstated” his role when he had said that he
upheld the complaint.
28.9 The Fourth Respondent confirmed that he had a good working relationship with the
First Respondent and that he had held him in high esteem. He agreed that the First
Respondent was a “micromanager”.
28.10 Mr Tabachnik put it to the Fourth Respondent that, despite his acknowledged conflict
of interest, he had not stepped aside from the investigation completely. The Fourth
Respondent confirmed this was correct. If JD had advised that he should do so then he
would have followed that advice. Mr Tabachnik put to him that he should have done
so. The Fourth Respondent stated that he had done so in relation to the decision about
the First Respondent.
28.11 The Fourth Respondent confirmed that he had not asked JD or anyone else external to
carry out the investigation. He told the Tribunal that this was one of the things that
would be done differently today compared to eight years ago.
28.12 The Fourth Respondent confirmed that he did not direct the Third Respondent to any
specific policies, but he had assumed that all partners were familiar with the relevant
ones including the grievance policy and the dignity at work policy. The Fourth
54
Respondent agreed that one did not require a policy to know that sexual harassment
was totally unacceptable, that a full investigation of the facts was an essential starting
point or that gross misconduct would usually lead to dismissal.
28.13 Mr Tabachnik asked the Fourth Respondent if he agreed that an alleged perpetrator
needed to be kept at “arm’s length” from the investigation into their own misconduct.
The Fourth Respondent told the Tribunal that the alleged perpetrator must not influence
the investigation, which must be independent. The term “arm’s length” was not one
within his HR training. The training the Fourth Respondent had received required him
to identify what had happened, obtain different people’s perspective if there were
witnesses and reach a judgement. The Fourth Respondent reminded the Tribunal that
his findings in this case were that the First Respondent had admitted to that which
Person A had told him.
28.14 The Fourth Respondent told the Tribunal that the decision to retain the First Respondent
was taken by EL and that the Fourth Respondent had been very unhappy with that
decision. However, because of the conflict of interest that the Fourth Respondent had
referred to earlier, he felt it was inappropriate to express that view at the time.
28.15 Mr Tabachnik put to the Fourth Respondent that JD’s advice had been that the focus in
the first instance should have been on establishing what Person A’s terms were. The
Fourth Respondent was not sure that this was what he had understood from JD’s advice
but he agreed it was very important to know what it was that Person A was seeking. In
his first meeting with Person A, the Fourth Respondent had established that there were
four things that Person A wanted; she wanted to feel comfortable returning to the office;
she wanted to clear the air with the First Respondent; she wanted him to apologise; and
she wanted reassurance that this would not impact on her career.
28.16 Mr Tabachnik suggested that JD’s advice that the Firm need to “avoid a scenario where
she would have stayed if he would go” meant that it was necessary to establish exactly
what Person A wanted before deciding how to deal with the First Respondent. The
Fourth Respondent told the Tribunal that he did not read the advice in the same way.
Person A had not expressed the view that she would not return to work if the First
Respondent was there. The Fourth Respondent was trying to balance engaging with
Person A about how she could return while being mindful of the fact that she was on
sick-leave at this time.
28.17 The Fourth Respondent confirmed that he had not typed up his notes of the meeting
with JD but he had gone through his advice verbally with the Third Respondent based
on his handwritten notes. The Fourth Respondent maintained that he had told the Third
Respondent of all of the advice and denied omitting any of it. The Fourth Respondent
was asked if he agreed with Mr Strivens’ description of the process as rushed. He was
not sure that he did agree with that characterisation.
28.18 The Fourth Respondent told the Tribunal that he had not sent Person A a note of the
first Starbucks meeting, asking her if there was anything she wished to correct or add.
The reason for this was that she was off sick at the time and he did not want to cause
her further distress, having regard to how distressed she had been during the meeting.
The Fourth Respondent had therefore made a judgement call on this matter. The Fourth
Respondent stated that if he or the Third Respondent had thought there were
55
inconsistencies in her account then he would have gone back to Person A. However,
based on what the First Respondent had said, they did not think that there were any
such inconsistencies.
28.19 The Fourth Respondent confirmed that the First Respondent had not been asked to write
down his version of events, but he had made notes of his conversations with the First
Respondent and that was consistent with his HR training. The Fourth Respondent had
not asked Person B to write down her account, but he had made notes of his meeting
with her.
28.20 Mr Tabachnik took the Fourth Respondent to his email to the First Respondent dated
28 February 2012 at 17.19 in which he had stated “I realise this is a really difficult
situation but I’m confident we’ll get through it”. The Fourth Respondent told the
Tribunal that he was not speculating on any outcome and this was a phrase that he
tended to use in difficult situations. The Fourth Respondent did not consider it an
inappropriate email to have sent. Mr Tabachnik suggested to the Fourth Respondent
that the email was a “communication of [his] allegiance” to the First Respondent. The
Fourth Respondent denied this. Mr Tabachnik put to the Fourth Respondent that he had
been assuring the First Respondent that he would assist the First Respondent as much
as possible to get through the process. The Fourth Respondent firmly denied this and
told the Tribunal that such a suggestion was not consistent with his subsequent actions,
which included taking external legal advice and suggesting that the matter was
escalated to global level, at which point he had no control over matters.
28.21 Mr Tabachnik took the Fourth Respondent to his email to the First Respondent dated
29 February 2012 at 07.42 in which he had informed him that he was taking advice
from JD and would update him later. Mr Tabachnik put to the Fourth Respondent that
this was evidence of his intention to communicate the advice received from JD to the
First Respondent. The Fourth Respondent denied he had been saying that he would
provide a full update. In an email earlier in the day at 10.10 the Fourth Respondent had
said to the First Respondent “Let me know if there’s anything you want me to
specifically ask him, but I think I’ve got the jist [sic]”. Mr Tabachnik put to the Fourth
Respondent that he had been asking the First Respondent to contribute to the questions
asked of JD about his own misconduct. The Fourth Respondent told the Tribunal that
he had been trying to manage the situation by not sharing detailed information but
keeping the First Respondent updated as to what he was doing to maintain the ongoing
working relationship. This email was the Fourth Respondent’s way of “managing him
in this very difficult circumstance”.
28.22 Mr Tabachnik took the Fourth Respondent to an email he had sent to the First
Respondent also on 29 February 2012 at 22.50 in which he had said that his respect for
the First Respondent was “…for the record, unchanged over the situation…”. The
Fourth Respondent accepted writing those words but told the Tribunal that they did not
reflect how he had felt at the time or since. The Fourth Respondent explained that this
was “probably the most difficult week of my working life”. He was emotional and he
had consumed alcohol at the time this email was sent. His respect for the First
Respondent, indeed everything, had changed.
56
28.23 The email had continued to refer to “potential ramifications which I sincerely hope we
can avoid”. Mr Tabachnik put to the Fourth Respondent that one such ramification that
he was hoping to avoid was the First Respondent being required to leave the Firm and
that this was the result of the continued conflict of interest. The Fourth Respondent
repeated that by this point the investigation was out of his hands.
28.24 The Fourth Respondent was taken through the series of emails in relation to the
proposed restrictions on the First Respondent’s consumption of alcohol at work events.
The Fourth Respondent accepted that in the course of those exchanges he had not
suggested to the Third Respondent that the First Respondent should be told to avoid
offering views about Person A. The Fourth Respondent told the Tribunal that it was
appropriate for the First Respondent to have input into the discussion about those
restrictions and it was not unusual for the First Respondent to send a lot of emails.
Mr Tabachnik made clear that it was not the Applicant’s case that there was a joint
enterprise involving the First, Third and Fourth Respondents, but suggested that the
First Respondent had considered that the three of them had been working together to
bring matters to a satisfactory conclusion. The Fourth Respondent replied that he did
not know what the First Respondent had thought on that point.
28.25 Mr Tabachnik put to the Fourth Respondent that he had not intervened when the Third
Respondent had, on the Applicant’s case, invited the First Respondent into a discussion
about “optimal messaging” to Person A. The Fourth Respondent accepted he had not
intervened but stated that this was not something that the First Respondent would have
been involved in.
28.26 The email 8 March 2012 at 10.13 was, Mr Tabachnik suggested, another example of
the First Respondent offering suggestions as to how matters should be presented to
Person A. The Fourth Respondent told the Tribunal that any settlement was a matter
for the employment lawyers and the First Respondent’s views were irrelevant to that.
28.27 The Fourth Respondent told the Tribunal that he drafted the warning letter to the First
Respondent but that SG and the Third Respondent were the ones who determined the
wording of it as it was a legal document and so outside the Fourth Respondent’s training
and capability. The Fourth Respondent did not think he had given the final version to
the First Respondent but he could not be certain.
28.28 The Fourth Respondent confirmed that he knew that JW was not brought into the
decision-making circle. The main reason for this was that confidentiality was of
fundamental importance to Person A. The Fourth Respondent told the Tribunal that JW
was not someone who he regarded as discreet. The Fourth Respondent did not feel that
in any event it was his role to be determining who was spoken to about this matter.
28.29 In relation to the reporting obligation in respect of serious misconduct, the Fourth
Respondent told the Tribunal that he had not known at the time that this extended to
this kind of behaviour. He told the Tribunal that at the end of the process the Third
Respondent had told him that this had been discussed amongst the Mancom partners,
that they had taken advice and had satisfied themselves that this was not something that
was required. Mr Tabachnik, and subsequently Mr Coleman, put to the Fourth
Respondent that this recollection was wrong. The Fourth Respondent maintained that
57
he was certain about this. The evidence of Mr Strivens was also put to the Fourth
Respondent and he maintained his position.
28.30 The Fourth Respondent told the Tribunal that when he had made a report to the SRA in
2015 this was on the basis of legal advice, rather than because he considered himself
under a duty to do so. When the SRA asked for further details these had not been
provided, again on the basis of legal advice the Fourth Respondent had received.
28.31 The Fourth Respondent confirmed that he denied all the Allegations against him.
28.32 In cross-examination by Mr Treverton-Jones the Fourth Respondent was again taken

through the chronology. This is not rehearsed again in this summary, save for where
new points arose that had not been expressly covered already. The Fourth Respondent
also set out some of the ways in which matters would be handed differently if such an
incident had occurred today compared to how it was handled eight years ago.
28.33 The Fourth Respondent agreed that the First Respondent had suggested that he bring
someone else in and that this was an entirely appropriate suggestion for the First
Respondent to have made. The Fourth Respondent told the Tribunal that when he had
said in his EWW response that he felt he was being “directed” to seek employment law
advice, the use of the word “directed” was too strong.
28.34 The Fourth Respondent took issue with Mr Treverton-Jones use of the word
“punishment” in relation to the drinking restrictions. This aspect related to managing
the situation going forward and ensuring there was no risk to employees in the future.
The diversity training fell into the same category.
28.35 Mr Treverton-Jones put to the Fourth Respondent that there had been nobody else at
the Firm that the First Respondent could have talked to. The Fourth Respondent agreed,
but made reference to the independent employee assistance programme.
28.36 The Fourth Respondent confirmed that at no point had he told the First Respondent to
stop sending emails to him or anyone else. He agreed that the First Respondent had
deferred to him throughout in determining how the Firm would deal with Person A.
The Fourth Respondent told the Tribunal that he was not influenced in any way
whatsoever by the First Respondent’s emails. The Fourth Respondent agreed that there
was nothing improper about the First Respondent reminding him that the external
solicitor, JD, should not discuss the issue outside the decision-making circle of 8-9
people.
28.37 The Fourth Respondent agreed with Mr Treverton-Jones that there was never any
intention to “banish” Person A from the Firm, indeed the focus was on her returning to
work.
28.38 In cross-examination by Mr Coleman, the Fourth Respondent was again taken through
the chronology. As with the summary of cross-examination by Mr Treverton-Jones, this
is not rehearsed again in this summary, save for where new points arose that had not
been expressly covered already.
58
28.39 The Fourth Respondent confirmed that Person A had made no suggestion that she
would only return if the First Respondent was dismissed.
28.40 The Fourth Respondent told the Tribunal that the decision to seek external legal advice
was “100% mine” and not the First Respondent’s and it was the Fourth Respondent
who chose JD to be the source of that external advice.
28.41 Mr Coleman asked the Fourth Respondent if his recollection was correct about giving
all the legal advice received from JD to the Third Respondent. The Fourth Respondent
maintained that he had provided the Third Respondent with all the legal advice and
denied that he had forgotten or mis-remembered this.
28.42 The Fourth Respondent agreed with Mr Coleman’s suggestion that the Third
Respondent had wanted to “play it entirely by the book” in what was a difficult and
novel situation. He further agreed that the Third Respondent would have been entitled
to expect that if the Fourth Respondent had detected anything improper, he would have
said so. The Fourth Respondent confirmed he would have told the Third Respondent at
the time if he thought this was the case.
28.43 The Fourth Respondent agreed that in terms of formulating restrictions on the First
Respondent’s consumption of alcohol, it was necessary for the First Respondent to be
involved. This was needed in order for the restrictions to be effective and for Person A
to feel comfortable about returning to work.
28.44 In cross-examination by Ms Robertson, the Fourth Respondent was once again taken
through parts of the chronology. As with the summary of cross-examination by
Mr Treverton-Jones and Mr Coleman, this is not rehearsed again, save for where new
points arose that had not been expressly covered already.
28.45 The Fourth Respondent told the Tribunal that the Third Respondent believed
passionately about equality, diversity and inclusion. He confirmed that the Firm was
ahead of many other firms in regard to LGBT+ issues. The Fourth Respondent had
continued to progress these issues while at the Firm and he confirmed that he had been
supported by senior management in this, including the First Respondent.
28.46 Ms Robertson took the Fourth Respondent to various policies that were in place at the
time including the grievance policy, dignity at work policy and ACAS guidance. He
confirmed that he believed his actions were consistent with those policies.
28.47 The Fourth Respondent confirmed that it was the Third Respondent’s decision and not
his as to whether JW was made aware of the matter.
28.48 Ms Robertson put to the Fourth Respondent that he had never raised any criticism of
JW’s discretion until his oral evidence. It was not in his witness statement and
Mr Laidlaw had not put it to any witnesses. The Fourth Respondent told the Tribunal
that his fundamental reason for not telling JW was that it was “not within my gift” to
be determining who was told. In respect of the global General Counsel, the Fourth
Respondent confirmed that his own role was limited to the London office.
59
28.49 The Fourth Respondent told the Tribunal that there had been discussion between
himself and JD over whether the First Respondent should be suspended. JD had advised
that to do so would be disproportionate to the risk that the Fourth Respondent was
managing.
28.50 Ms Robertson asked the Fourth Respondent if he now accepted that it was an error of
judgement to send emails to the First Respondent containing phrases such as “We will
get through this”, notwithstanding that the Fourth Respondent was not a
decision-maker. The Fourth Respondent denied that it had been an error of judgement
as he had a duty of care to everyone including the First Respondent. It was important
to look at the context of the emails.
Findings of Fact and Law
29. The Applicant was required to prove the Allegations beyond reasonable doubt. The
Tribunal had due regard to the Respondents’ rights to a fair trial and specifically in
relation to the First, Third and Fourth Respondents, to respect for their private and
family life under Articles 6 and 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
30. The Tribunal considered carefully all the documents, witness statements and oral
evidence presented. In addition, it had regard to the oral and written submissions of
both parties, which are briefly summarised or quoted below. In considering the
Allegations against each of the Respondents the Tribunal confined itself to the
Allegations as pleaded in the Rule 5 statement and where submissions appeared to stray
beyond that, they were disregarded.
31. The Tribunal had been invited to consider character evidence in respect of the First,
Third and Fourth Respondents. The Applicant had not objected to this evidence being
adduced and so the Tribunal had regard to it when determining the Allegations.
32. Allegation 1.1
Applicant’s Submissions
32.1 Mr Tabachnik relied on the oral and written evidence of Person A and Person B in
support of this Allegation. He had also put his case to the First Respondent in the course
of detailed and lengthy cross-examination, which has been summarised above.
32.2 The Applicant’s case was that the First Respondent was, and knew himself to be, very
senior in the Firm, and was in a position of authority over Person A. He was capable,
at the time of the incident, of influencing Person A’s career.
32.3 The First Respondent used a pretext to cause Person A to be alone in his hotel room
with him by asking her to stay when the others were leaving. The First Respondent had
sought to initiate intimate physical contact and in doing so had kissed Person A. Person
A had not given any indication that this was invited or wanted. He had persisted despite
Person A indicating that the conduct was unwelcome.
60
32.4 Person A had been appalled and extremely distressed by the behaviour of the First
Respondent. She was fearful that her career at the firm would be adversely affected by
the fact she had rejected his advances. Mr Tabachnik described this as “inevitable
pernicious effect of sexual harassment by somebody in a position of power and
responsibility” which the First Respondent occupied.
32.5 Mr Tabachnik submitted that by acting as he did the First Respondent had failed to act
with integrity, by reference to Wingate v Solicitors Regulation Authority v Malins
[2018] EWCA Civ 366, in that his conduct fell seriously short of the ethical standards
of the profession The First Respondent’s action in knowingly causing Person A to be
alone in his hotel room with him, with the intention of initiating intimate contact, was
a particularly aggravating factor. Mr Tabachnik submitted that this type of misconduct
had been a matter of regulatory concern for many years before the #MeToo movement.
32.6 Mr Tabachnik submitted that the First Respondent had failed to behave in a way which
maintained the trust placed in him by the public. The public, including employees of
the Firm, would expect solicitors, and partners in solicitors’ firms, to refrain from
attempting to initiate intimate contact with a junior employee over whom the First
Respondent was in a position of authority.
First Respondent’s Submissions
32.7 Mr Treverton-Jones had cross-examined the witnesses and the other Respondents in
detail during the course of the hearing and his case was evident from those
examinations. His submissions are summarised below, but the Tribunal had regard to
the totality of the First Respondent’s case as argued when considering the Allegations.
32.8 Mr Treverton-Jones accepted that the First Respondent’s conduct during the incident
question was inappropriate and reprehensible. He told the Tribunal that the First
Respondent bitterly regretted his conduct during this “moment of madness”. The First
Respondent did not seek to excuse his actions.
32.9 Mr Treverton-Jones submitted that while many forms of sexual harassment by a

solicitor would amount to professional misconduct, not every form of such harassment
must inevitably be professional misconduct. This was because sexual harassment took
a variety of forms and some were more serious than others. The question which
Mr Treverton-Jones invited the Tribunal to consider was what if the alleged harasser
honestly but mistakenly believed that his advances would be welcomed by the recipient
and desisted as soon as he realised his mistake.
32.10 Mr Treverton-Jones submitted that there were many incidents of conduct by senior
solicitors which could lead to internal disciplinary actions but did not amount to
professional misconduct and this is not the first case in which the Tribunal had to
consider this sort of behaviour. Mr Treverton-Jones referred to the cases of
SRA v Beckwith Case No: 11887-2018 and SRA v Scott Case No: 11958-2019, both
of which considered conduct more serious than this.
32.11 Mr Treverton-Jones submitted that the principal issue was whether the First Respondent
persisted in making an advance to Person A after he became aware that such an advance
was unwelcome He submitted that the evidence fell short of this. When Person A’s
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evidence was analysed, any significant differences between her version and his in this
regard melted away. If the Tribunal was with him on this point then he submitted that
what was left was a man who had honestly, but mistakenly, believed that his advance
would be welcome and when he realised that he was wrong about this, he desisted,
properly took “no” for an answer, and apologised very shortly afterwards.
Mr Treverton-Jones submitted that an honest mistake in such circumstances could not
amount to professional misconduct.
32.12 Mr Treverton-Jones submitted that the Tribunal should apply the standards of conduct
to be expected in 2012 rather than 2020 when considering this matter. He noted that
welcome changes had occurred since 2012, but warned the Tribunal of the danger of
“permitting the pendulum to swing too far”.
32.13 Mr Treverton-Jones invited the Tribunal to make a finding of fact that the First
Respondent honestly believed that his attentions would be welcome and that he desisted
when it became clear that they were not. He reminded the Tribunal that the burden of
proof lay on the Applicant to prove that this was not the case.
32.14 Mr Treverton-Jones submitted that the basis for the First Respondent’s belief arose
from the way in which matters developed in his bedroom when Person A and Person C
were sitting side by side on the bed, with Person C running his hand up and down her
leg. The First Respondent had stated that Person A was not discomfited by this and was
smiling at him while it was happening. Mr Treverton-Jones submitted that this was the
context to what happened next and it amounted to a full and proper explanation as to
why the First Respondent had believed what he did.
32.15 In relation to the issue of the First Respondent desisting, Mr Treverton-Jones accepted
that Person A was an honest witness but submitted that she was mistaken. He identified
four areas where he submitted she was mistaken in particular. The first was when she
had stated that the First Respondent had asked to stay behind in an authoritative manner.
This evidence was contradicted by Person B. Secondly, she said that Person B had
asked her if she was going to be ok just before Person B and the others left the room.
Mr Treverton-Jones submitted that that this was denied by Person B and he invited the
Tribunal to prefer the evidence of Person B on that issue. Thirdly, Mr Treverton-Jones
submitted that Person A had made a mistake when she said that the Fourth Respondent
had told her during the first Starbucks meeting that the First Respondent had admitted
everything. Fourthly, Mr Treverton-Jones submitted that the “ticking time bomb”
remark allegedly made by Person B was not something Person B had any recollection
of saying this to Person A.
32.16 Mr Treverton-Jones invited the Tribunal to consider that Person A would have been
very angry and upset when she wrote her email to herself and when she gave her version
of events at the first Starbucks meeting. Therefore, where there was an inconsistency
between her version in the days after the incident and her oral evidence, he invited the
Tribunal to prefer her oral evidence. Mr Treverton-Jones submitted that the “extended
hug” and the “tightened grip” were not made out on the evidence.
32.17 Mr Treverton-Jones submitted that Person A’s witness statement, which was not taken
until after the Rule 5 statement had been issued, went further than the Rule 5 statement.
The pleaded case was that contained in the note of the Starbucks meeting.
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32.18 Mr Treverton-Jones submitted that if the Tribunal accepted Person A’s evidence as
given in cross-examination then professional misconduct was not made out as for it to
be proved in these circumstances the Tribunal would have to be satisfied that the First
Respondent had behaved “disgracefully” after becoming aware that Person A did not
welcome his advances.
32.19 Mr Treverton-Jones submitted that the Tribunal would have to be satisfied that what
the First Respondent did was professional misconduct in 2012, and not that it would be
professional misconduct if the incident had occurred in 2020, though it was denied that
it was professional misconduct at any time.
32.20 Mr Treverton-Jones submitted that the conduct could not amount to a lack of integrity.
In support of that submission he relied on Howd v BSB [2017] 4 WLR 54 paragraphs
[45] and [46]:
“45. I agree with the construction adopted in Sivanadan and, reading the Core
Duties and Rules as a whole, I consider that Mr Howd’s construction of CD3 is
correct. “Integrity” in CD3 takes its colour from the term “honesty” in CD3 and
connotes probity and adherence to ethical standards, not inappropriate and
offensive social or sexual behaviour. In support of his construction, Chapter C2
is headed “Behaving ethically” and Rule rC9, which supplements CD3, only
lists requirements which accord with Mr Howd’s construction, and does not list
requirements which accord with the BSB’s wider use of the term integrity to
cover Personal conduct unrelated to honesty or probity.
46. The basis upon which the Tribunal found that these allegations could amount
to a lack of integrity was the Guidance at gC25 which lists “other conduct which
is likely to be treated as a breach of CD3 and/or CD5” including “seriously
offensive or discreditable conduct towards Third parties”. It is clear from the
manner in which the Tribunal’s judgment is expressed that they proceeded on
the footing that, if they found the conduct to be seriously offensive or
discreditable towards the complainants, then the conduct necessarily amounted
to conduct which breached CD3. In my view, the Tribunal erred in applying the
Guidance as if it was a mandatory rule of conduct, and they lost sight of the
need to be satisfied that the “seriously offensive or discreditable conduct” in
this particular case amounted to a failure to “act with honesty and integrity”
within the meaning of CD3. Their error may have resulted, at least in part, from
the fact that the Guidance is expressed in very broad terms, and does not
distinguish between the requirements of CD3 and CD5. In my view, Mr Howd’s
conduct was not appropriately charged as a breach of CD3, because, although it
was inappropriate and at times offensive, it did not demonstrate a lack of
honesty or integrity. The charges under CD3 ought to have been dismissed.”
32.21 Mr Treverton-Jones submitted that this case was clearly distinguishable from Beckwith,
given the circumstances already outlined above in relation to the conduct in that case.
The Tribunal’s Findings
32.22 The factual dispute in relation to the incident was relatively narrow. The First
Respondent had admitted that his conduct was inappropriate on the night of
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23-24 February 2012. He had accepted that he sought to initiate intimate activity with
Person A, albeit the way he had gone about it was the subject of some dispute.
32.23 The First Respondent was the Managing Partner of the Firm’s London office and was
therefore one of the most senior individuals in the Firm. In contrast, Person A was a
junior fee earner. The First Respondent was clearly in a position of authority and
responsibility over Person A. The First Respondent accepted that he had caused Person
A to remain back in his hotel room. The First Respondent had denied asking her to do
so in an “authoritative tone”, but as outlined above, this was an exchange between a
Managing Partner and a junior fee earner and the Tribunal found that the authority came
from that disparity in seniority, regardless of the tone that may have been adopted by
32.24 The First Respondent accepted that he had told Person A that he was attracted to her.
He further accepted that in fact this was neither invited nor wanted on the part of Person
A. However, the First Respondent maintained that he had thought she did not object,
albeit he accepted he was mistaken in this belief. The Tribunal found that the First
Respondent’s judgement was impaired due to alcohol at the time of the incident. The
basis of the First Respondent’s belief appeared to be that Person A was not objecting to
suggestive behaviour by Person C and was looking at him and smiling while Person C
was behaving in this way. Person A was clear in her evidence that she had given no
indication of any interest in the First Respondent, verbal or otherwise, and the Tribunal
accepted that evidence. However, given his level of intoxication, the Tribunal could
not exclude the possibility that the First Respondent had, entirely unreasonably,
persuaded himself initially that Person A may have expressed some sort of interest in
him. There came a point in the incident however, when Person A told the First
Respondent that what he was doing was inappropriate. This is clearly recorded in her
contemporaneous accounts of the incident, these being the email she sent herself on
26 February 2012 in which she had written:
“He hugged me. I felt extremely uncomfortable and tried to pull back. I patted
him on the back to try to diffuse the situation and said I should go now Gary.
He said “you’re very attractive I think you’re really fit.” I thanked him politely
and said I really must go. He said “don’t go. Stay and have a drink with me”. I
felt extremely uncomfortable. I said “no, I don’t think that would be appropriate.
I must go.”
32.25 It was also in the account given to the Fourth Respondent at the first Starbucks meeting
the next day in which read:
“- [Person A] said “I should go”. Her phone rang and she said “I have to get my
phone, that will be my boyfriend, he will be very worried if I don’t answer the
phone”. - GS said “don’t answer it, don’t go”. GS tried to kiss [Person A] on
the check, [Person A] moved her head to avoid these advances. GS then kissed
[Person A] on the neck. [Person A] said “I should go, this is inappropriate”
32.26 The Tribunal found that once Person A had told the First Respondent that his conduct
was inappropriate, he could no longer have held any belief that his attentions were in
any way consented to.
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32.27 The First Respondent admitted that he moved to kiss Person A on the neck but denied
hugging her. The Tribunal noted that the First Respondent, who was intoxicated at the
time, had made no note of his account of the incident when he became aware of the
complaint. In contrast, Person A had not been intoxicated and had made reference to
the hug in the email to herself in the early hours of 26 February 2012 and in the first
Starbucks meeting with the Fourth Respondent on 27 February 2012. This was
consistent with Person A’s witness statement and she had not resiled from that in her
oral evidence to the Tribunal.
32.28 The Tribunal found Person A to be an entirely credible and thoughtful witness and
accepted her evidence in its entirety. She gave her evidence in a considered manner
and made concessions where she felt appropriate. She had been consistent both in what
she had said about the incident in notes to herself and in what she had said to others.
The discrepancies between what she said in her contemporaneous accounts and what
she had said in evidence were minor and not such as to undermine her evidence. The
process of giving evidence was not a memory test. The Tribunal also considered that
Person A’s account of the hug, in the context of the admitted attempt to kiss, was more
plausible. The Tribunal was satisfied beyond reasonable doubt that Person A’s account
of this was correct and that the First Respondent had hugged her as well as moved to
kiss her. As the Tribunal had found above, Person A had not indicated her consent to
such contact.
32.29 The Tribunal also found Person B to be credible and she had clearly done her best to
assist the Tribunal. Person B had given evidence as to the positive strengths of the First
Respondent. This was of limited relevance in a case such as this, but it did demonstrate
the extent of the First Respondent’s influence and position of power. The Tribunal
found nothing in her evidence that displaced the Tribunal’s acceptance of Person A’s
evidence.
32.30 The Tribunal then considered the element of the Allegation in which it was said that
the First Respondent had persisted in such conduct, Person A having indicated that the
conduct was inappropriate. Person A had noted in her contemporaneous accounts that
she had told the First Respondent that this was inappropriate and had told him that her
boyfriend was ringing her mobile phone. The reference to her boyfriend telephoning
was consistent with her giving an indication to the First Respondent that what was
taking place was neither appropriate nor welcome. The Tribunal accepted Person A’s
evidence that she had told the First Respondent that his conduct was inappropriate.
32.31 Person A had told the Tribunal in her oral evidence that, although the First Respondent
had possibly pulled back after she had told him that she had to answer the call from her
boyfriend, he had continued to persuade her to stay by saying “Don’t answer it, stay.
We’ll talk about your boyfriend”. In her email to herself of 26 February 2012 Person A
had written that the First Respondent had responded to the phone call by saying “don’t
go, stay and have a drink with me”.
32.32 In her account during the first Starbucks meeting, Person A had said that the First
Respondent had responded to the phone call by saying “Ignore it. Stay and have a drink,
we can talk about your boyfriend”.
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32.33 While the precise wording differed very slightly, the Tribunal was satisfied beyond
reasonable doubt that the First Respondent had sought to dissuade Person A from taking
the phone call from her boyfriend and to remain with him in the hotel room instead.
32.34 There was some discrepancy as to whether the phone call happened before or after
Person A used the word “inappropriate”. The Tribunal did not consider this to be
material. The point was that Person A was making clear to the First Respondent that
she did not want to remain in the hotel room with him, did not want physical contact
and that what he was doing was inappropriate. The First Respondent knew that this was
what he was being told as had sought to persuade Person A otherwise and in doing so
had persisted with his unwelcome conduct.
32.35 The Tribunal therefore found the factual basis of all aspects of Allegation 1.1, as set out
in 1.1.1-1.1.5 proved in full beyond reasonable doubt.
32.36 The Tribunal went on to consider whether the factual findings made in relation to
Allegation 1.1 amounted to professional misconduct. The First Respondent had
accepted that his conduct amounted to sexual harassment and unprofessional conduct.
The Tribunal found that his conduct during the incident represented an extraordinary
abuse of position. The unequal balance of authority was critical to the context in which
the incident took place. The First Respondent was in a very senior position in the Firm
and Person A was a junior fee-earner in his hotel room, having remained there at his
instigation. The First Respondent had attempted intimate contact with that junior
employee after a work-related event and had persisted despite being told what he ought
to have known anyway, that his behaviour was not appropriate and that Person A
wanted it to stop. The Tribunal was satisfied beyond reasonable doubt that the First
Respondent’s actions amounted to serious professional misconduct.
32.37 Principle 2
32.37.1 In considering whether the First Respondent had lacked integrity it applied
the test for integrity set out in Wingate and Evans v SRA and SRA v Malins
[2018] EWCA Civ 366. At [100] Jackson LJ had stated:
“Integrity connotes adherence to the ethical standards of one’s own

profession. That involves more than mere honesty. To take one
example, a solicitor conducting negotiations or a barrister making
submissions to a judge or arbitrator will take particular care not to
mislead. Such a professional Person is expected to be even more
scrupulous about accuracy than a member of the general public in
daily discourse”.
32.37.2 At [97] he had stated:
“In professional codes of conduct, the term “integrity” is a useful

shorthand to express the higher standards which society expects
from professional Persons and which the professions expect from
their own members. See the judgment of Sir Brian Leveson P in
Williams at [130]. The underlying rationale is that the professions
66
have a privileged and trusted role in society. In return they are

required to live up to their own professional standards.”
32.37.3 Wingate and Evans and Malins had continued a line of authorities that
included SRA v Chan [2015] EWHC 2659, Scott v SRA [2016] EWHC 1256
(Admin), Newell-Austin v SRA [2017] EWHC 411 (Admin) and Williams v
SRA [2017] EWHC 1478 (Admin).
32.37.4 The Tribunal had found that this conduct was a serious abuse of position on
the part of the First Respondent. As the Managing Partner he should never
have put Person A in the position of being alone with him in his hotel room
in the first place. The Tribunal considered that integrity must include how a
solicitor deals with his/her colleagues and have regard to the disparity in their
respective roles and seniority.
32.37.5 Mr Treverton-Jones had referred to Beckwith and Scott. These were decision
of the Tribunal in cases with a different factual matrix and were therefore not
of assistance to the Tribunal.
32.37.6 The Tribunal was satisfied beyond reasonable doubt that the First
Respondent’s conduct, as set out above, was such that he had lacked integrity
throughout the incident. The breach of Principle 2 was therefore proved.
32.38 Principle 6
32.38.1 The Tribunal found that the public would expect senior lawyers not to abuse
their position by initiating and seeking to pursue unwelcome intimate contact
with junior employees. The trust the public placed in the profession required
solicitors to act with integrity and this had clearly not happened in this
incident, for the reasons set out above.
32.38.2 The Tribunal found the breach of Principle 6 proved beyond reasonable
doubt.
33. Allegation 1.2
33.1 Mr Tabachnik relied principally on the documentary evidence in support of this

Allegation. He had also put his case to the First Respondent in the course of
cross-examination, which has been summarised above.
33.2 The Applicant’s case was that the First Respondent made multiple attempts to influence
the conduct and outcome of the investigation into his conduct, in a manner calculated
to prefer his own interests over those of Person A. The matters that the First Respondent
was said to have improperly sought to influence were set out in the Rule 5 Statement
as follows:
“101.1. the views of senior staff as to the credibility of Person A’s complaint;
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101.2. by whom an investigation should be conducted;
101.3. to whom information about his conduct, and the investigation, should
be communicated;
101.4. the means by which communications were handled with Person A;
101.5. the extent and terms of communications with other staff involved in
decision-making about the outcome of the investigation into his
conduct, including steps to prevent the Firm’s Counsel being informed
of his conduct or Person A’s complaint;
101.6. the weight to be ascribed to his retention in the Firm;
101.7. the weight to be ascribed to his career prospects including his prospects
of further promotion;
101.8. internal communications as to the prospects of Person A remaining

with the Firm;
101.9. the weight to be ascribed to confidentiality of the allegations, including

non-disclosure within the Firm;
101.10. the terms of correspondence notifying him of the outcome of the

investigation;
101.11. the outcome of the investigation”
33.3 Mr Tabachnik submitted that the First Respondent had knowingly used his position of
seniority to seek to influence the outcome of the Firm’s response, in his own interests
and in his favour. He had also prevented JW being informed of the matter, despite the
recently circulated guidance to the effect that the General Counsel should be informed
of complaints of harassment.
33.4 Mr Tabachnik submitted that the First Respondent had lacked integrity in improperly
seeking to influence the Firm’s response to Person A’s complaint in a manner
determined and enabled by his senior position. The Applicant relied on the following
factors as features of the First Respondent’s lack of integrity:
• He had repeatedly emphasised the importance of confidentiality;
• He had emphasised the importance of his own career prospects;
• He had sought to challenge the legitimacy of Person A’s concerns and the
importance of her remaining at the Firm – the “big pay-off” email was said to be
an example of this;
• He had sought to intervene in communications and decision-making, including

providing the “thoughts for your script” email and making suggestions about the
68
nature of communications with Person A as well as having input in to his own

warning letter;
• He had prevented the Firm’s General Counsel being informed of the matter;
33.5 It was submitted that the First Respondent had also breached Principle 6.
33.6 Mr Treverton-Jones described this aspect of the case against the First Respondent as
the “incredible shrinking case”. He submitted that the reason this Allegation had been
brought was because of the way in which the Firm had conducted itself since the matter
became public in 2018. Mr Treverton-Jones made a number of submissions about the
Firm’s actions since 2018. They are not summarised in detail here as they were not
directly relevant to the Allegation faced by the First Respondent as pleaded in the
Rule 5 statement and were perhaps more relevant to mitigation, there having been no
submission of abuse of process. Mr Treverton-Jones submitted that the Firm’s initial
position was responsible for the way in which the case against the First Respondent was
brought, and its change of position significantly undermined the case against him.
33.7 Mr Treverton-Jones submitted that for professional misconduct to be made out, the First
Respondent must have improperly exerted the influence knowing that he should not be
doing so. Mr Treverton-Jones reminded the Tribunal of the evidence that the First
Respondent had made the recommendation to the Fourth Respondent about bringing in
another partner. The Fourth Respondent had taken and acted on advice from JD without
reference to the First Respondent. The First Respondent had told the Fourth Respondent
to treat the Third Respondent as his client. The Third and Fourth Respondents had
spoken to KV without further reference to the First Respondent and the
decision-making process thereafter was made by others, again without reference to the
First Respondent. Mr Treverton-Jones reminded the Tribunal of the First Respondent’s
evidence about being in “deferral mode”. Mr Treverton-Jones submitted that the First
Respondent had not acted or intended to act improperly and he reminded the Tribunal
that all witnesses had told the Tribunal that the First Respondent was honest,
straightforward, and not manipulative. The First Respondent would also have known
that, due to the Third Respondent’s integrity, any attempt to influence would have been
doomed to fail.
33.8 Mr Treverton-Jones submitted that it was important to understand the decision-making

structure, which involved the Firm making a decision, and then seeking the approval of
the global Firm.
33.9 Mr Treverton-Jones submitted that the emails spoke for themselves but that they need
to be placed in proper context. They were written without much thought and not in the
expectation that they would be examined in detail several years later by the Tribunal.
The only email that called for an explanation was the “thoughts for your script” email
of 2 March 2012. The Tribunal now had the explanation for that. At the time that the
email was written, the Third Respondent had already indicated to the First Respondent
what the decision at London-level was going to be and at that stage the matter had to
be considered at global level.
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33.10 Mr Treverton-Jones submitted that once that was understood, the chain of events fell
into place, such that it was clear that there had been no impropriety at any stage by the
First, Third or Fourth Respondents. Mr Treverton-Jones reminded the Tribunal that the
First Respondent had not been suspended – something that was not his decision.
33.11 Mr Treverton-Jones submitted that the Tribunal could take into account what the First
Respondent did not do, as well as what he did. If the First Respondent had been seeking
to improperly influence the investigation then there was no obvious reason to confine
this to the Third Respondent. There was no evidence that he had sought to influence
Person T, SG, PR, EL, BA, KV or Mr Strivens. When he had made contact it had only
been to apologise.
33.12 Mr Treverton-Jones reminded the Tribunal of what he submitted was a very important
email in the context of this case at 17.24 on 28 February 2012 when the First
Respondent had suggested involvement of another partner to the Fourth Respondent.
Mr Treverton-Jones submitted that this was the “precise antithesis of being an improper
attempt to interfere. The email referring to the “big pay off” was “unfortunate but
irrelevant to the outcome of this case”.
33.13 On 29 February 2012 the Fourth Respondent had specifically asked the First
Respondent to let him know if there was anything he wanted asked of JD.
Mr Treverton-Jones submitted that the First Respondent had responded entirely
appropriately.
33.14 On 1 March 2012 the Third and Fourth Respondent had telephoned KV. Mr Treverton-
Jones submitted that this was an important telephone call as it was here that the
possibility of a ‘yellow card’ was introduced by KV. The First Respondent had been
unaware that the Third Respondent had decided to speak with KV.
33.15 On the same evening the First Respondent had advised the Fourth Respondent to treat
the Third Respondent as his internal client. The email stated “So now I leave it to you
and Tom...” Mr Treverton-Jones again submitted that this was entirely proper and it
could not be suggested that he had improperly sought to influence the Third or Fourth
Respondent at that stage. When it came to the “thoughts for your script email”,
Mr Treverton-Jones submitted that this had been written in the honest and reasonable
belief that the Third Respondent’s role was to advocate to the global Firm for the
‘yellow card’ sanction. There was also nothing remarkable about the First Respondent
being involved in the emails about the restrictions on alcohol.
33.16 Mr Treverton-Jones submitted that from 6 March 2012 onwards - the decision was now
out of the hands of those in the London Firm and rested with the global Firm. There
had been no professional misconduct by the First, Third or Fourth Respondents.
Mr Treverton-Jones submitted that any attempt to influence was entirely proper and
was welcomed by the Third Respondent.
33.17 In relation to the allegation that the First Respondent sought to keep the information
away from JW, it was the Third Respondent who had decided to exclude JW from
knowledge of this matter. The First Respondent was simply ensuring that the circle of
confidentiality was not inadvertently broken, something he was entitled to do as
Managing Partner. Mr Treverton-Jones submitted that this Allegation was “hopeless”.
70
33.18 Mr Treverton-Jones again submitted that there could be no lack of integrity in relation
to this Allegation. There was nothing about the First Respondent’s conduct that made
it so much more serious than any other Respondent and there were no allegations of
lack of integrity against them.
33.19 The Tribunal found that the investigation was in two parts. Part one was to determine
the facts of the incident. Part two was the disciplinary process that followed from the
finding of the facts, which led to the outcome of the investigation. The Tribunal found
the investigation into the facts began at the first Starbucks meeting on 27 February 2012
and ended on 1 March 2012 at the meeting between the First, Third and Fourth
Respondents. It was at this last meeting that the First Respondent was challenged on
the discrepancies between his account of the incident and that of Person A. The Third
and Fourth Respondents decided to proceed on the basis of Person A’s account rather
than the First Respondent’s. The investigation into the facts was conducted by the
Fourth Respondent.
33.20 The matters that occurred thereafter were part of a disciplinary process in respect of the
First Respondent, resulting in the written warning letter, running in tandem with
attempts at resolving Person A’s grievance, resulting in the settlement agreement. The
Tribunal proceeded on the basis that the term “outcome of the investigation” meant the
conclusion of the disciplinary process and the settlement agreement. This part of the
investigation was led by the Third Respondent.
33.21 The Tribunal found the First Respondent in his evidence had sought to deflect some of
the more difficult questions so as to avoid scrutiny as to his actions. At all times he had
sought to minimise his involvement and on occasion he had been evasive.
Allegation 1.2.1 – the conduct of the investigation
33.22 The Tribunal considered firstly, whether the First Respondent had sought, by reason of
his seniority, to influence the conduct of the investigation. Where it found that he had
done so, it then considered whether that attempt was improper. The Tribunal reviewed
the email chains and was satisfied beyond reasonable doubt that the First Respondent
had clearly been trying to influence the conduct of the investigation. He had been very
concerned about the outcome and keen to protect his own position. In the absence of a
more formal process he had been able to send messages that he might not otherwise
have done.
33.23 The Tribunal then considered whether the attempts to influence the conduct of the
investigation were improper. The Rule 5 Statement had pleaded 11 instances of how
the First Respondent had improperly sought to influence matters. In relation to
Allegation 1.2.1 the Tribunal considered those that were relevant to the conduct of the
investigation. The remainder were relevant to the outcome of the investigation and are
discussed under Allegation 1.2.2 below. The Tribunal addressed each particular in turn.
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“The First Respondent sought to influence, by means of direct communication with individuals
as a result of his senior position in the Firm:
101.1. the views of senior staff as to the credibility of Person A’s complaint;”
33.24 The Tribunal considered the email sent from the First Respondent to the Fourth
Respondent at 20.29 on 28 February 2012. This was an email that was sent by the
Managing Partner to the HR Director at the outset of an investigation into a serious
allegation in to the First Respondent’s conduct that was being carried out by the Fourth
Respondent. In that email the First Respondent had sought to undermine the credibility
of Person A by impugning her motives in a number of ways. He had not only stated
that it sounded like Person A was after “a big pay-off” who might “threaten to sue us”
but he had linked it to the suggestion that she had doubts as to whether a City law firm
was right for her. The email went on to highlight dangers to the Firm if the matter came
to light. The Tribunal found beyond reasonable doubt that this was an attempt to
influence how Person A would be viewed by the Fourth Respondent and was a blatant
attempt to undermine her credibility. The First Respondent did not correct or retract the
contents of his email in any of his subsequent exchanges with the Fourth Respondent.
The Tribunal was satisfied beyond reasonable doubt that this attempt to influence the
conduct of the investigation was improper.
“101.2. by whom an investigation should be conducted”
33.25 This related to the First Respondent’s suggestion that the Fourth Respondent should
consider bringing in another partner. This was contained in the First Respondent’s email
of 28 February 2012 at 17.24. The First Respondent offered to “think how best to do
that” if the Fourth Respondent wanted to go down that route. The Tribunal found
beyond reasonable doubt that this was an attempt to influence how the investigation
was conducted and by whom. The Tribunal was further satisfied beyond reasonable
doubt that it was improper for the First Respondent to have done so. The individual
under investigation should not have input into deciding who investigated his own
misconduct and this was particularly so when that individual was the Managing Partner.
“101.3. to whom information about his conduct, and the investigation, should be
communicated”
33.26 The First Respondent and Person A both wanted the matter to be kept confidential,
albeit for very different reasons. In the First Respondent’s case he wanted it kept
confidential as he wanted to protect his own position. The Tribunal did not find that his
desire for confidentiality had anything to do with Person A’s interests. However, the
Tribunal did not consider it to be improper to an individual under investigation to
request that the details are kept confidential, at least until the investigation was
concluded. This was distinct from the question of whether JW was to be informed,
which is addressed under a separate particular below.
“101.4, the means by which communications were handled with Person A”
33.27 The First Respondent had sent a number of emails to the Fourth Respondent in which
he offered suggestions for how communications with her should be handled.
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33.28 In the email about Person A’s motivation dated 28 February 2012 at 20.29, the First
Respondent had stated:
“Presumably a note of an informal meeting could be used as a basis for a claim”.
33.29 In the email earlier that day at 17.24 he had written:
“I just want it to end but I suppose that depends on what she really wants. I hope
that her hearing where I am at will make a difference.”
33.30 On 29 February 2012 at 18.08 the First Respondent had emailed the Fourth Respondent
and stated:
“I am seeing Tom tonight. Before we convey stuff to her it may make sense for
you to chat the strategy thro with him perhaps first thing tomorrow”
33.31 The First Respondent had also prepared the script for the meeting with Person A in
which his apology was to be conveyed at the second Starbucks meeting as follows:
“[Brief Jenny]. I am deeply sorry and feel terrible that I’ve caused such distress
and I’m very embarrassed. It’s completely out of character - I was drunk and it
was a moment of madness and nothing like this has ever happened I’ve been at
BM for 28 years and no one has ever complained and I don’t believe I’ve ever
caused distress One of the reasons I’m a popular managing partner is I enjoy
drinking with others That said, being in your hotel room with 3 women at 3.30
am is clearly not right. I’m not an unpleasant person. If I get drunk, I get tactile,
affectionate but I don’t get unpleasant I can see it was a wholly inappropriate
situation but I want... My view of her is no different than before. I absolutely
respect the way she had dealt with this issue. She wouldn’t have been kept on
as an [redacted] if she wasn’t excellent. There’s no reason to expect she
wouldn’t have a good career.
[Page 490] Subject to her comments I would treat her in exactly the same way
as any [redacted] and this will have no negative impact on her whatsoever. I
would like to meet her to convey my apologies directly.”
33.32 This went beyond an apology in that it contained a significant amount of mitigation and
justification of the First Respondent’s position. This was what the First Respondent
wanted conveyed to Person A, in the context of his concern that she might bring legal
action against the Firm.
33.33 The Tribunal was satisfied beyond reasonable doubt that the emails referred to in this
sub-heading and the proposed script of what was to be said to Person A was clear
evidence that the First Respondent had sought to influence how the communications
with Person A, the complainant, were to be handled. The Tribunal was satisfied beyond
reasonable doubt that it was improper for the First Respondent to seek to influence that
part of the conduct of the investigation.
33.34 The Tribunal was satisfied beyond reasonable doubt that the First Respondent had
sought, by reason of his seniority, to influence the conduct of the investigation.
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Allegation 1.2.2 – the outcome of the investigation.
33.35 The Tribunal considered firstly, whether the First Respondent had sought, by reason of
his seniority, to influence the outcome of the investigation. Where it found that he had
done so, it then considered whether that attempt was improper. The Tribunal was
satisfied beyond reasonable doubt that the First Respondent had clearly been trying to
influence the outcome of the investigation. The Tribunal found that the First
Respondent was entitled to make representations as to how he should be dealt with in
the same way that an employee is entitled to make representations as to the outcome of
a disciplinary process. What he was not entitled to do was anything that sought to
undermine the integrity of the process by which that decision was reached. He was also
not entitled to seek to influence any aspect of the way in which Person A was treated
or any decisions relating to her.
33.36 The following particulars set out in the Rule 5 statement concerned the First
Respondent’s conduct in relation to the outcome of the investigation. It was alleged that
the First Respondent had sought to influence the outcome of the investigation by reason
of his seniority in the following ways:
“101.5. the extent and terms of communications with other staff involved in decision-making
about the outcome of the investigation into his conduct, including taking steps to prevent the
Firm’s General Counsel being informed of his conduct or Person A’s complaint”
33.37 The Tribunal found that while it was not improper to seek to maintain confidentiality
in a wider sense, it was improper to seek to limit or manipulate the information provided
to decision-makers.
33.38 On 2 March 2012 at 04.32 the First Respondent had emailed the Third Respondent and
stated that he would be grateful for a discussion about “presentation to others of the
rules, Bea and Paul”.
33.39 Later the same day at 16.58 the First Respondent had emailed the Third Respondent,
the heading of the email being “Thoughts for your script”. The Tribunal acknowledged
that the First Respondent had stated in the body of the email that the Third Respondent
must be happy to convey it all as he saw it. However, this was an email from the
Managing Partner and the First Respondent had not stated that the Third Respondent
was free to dispense with the advice altogether if he saw fit. The email then set out in
very great detail a verbatim script for the Third Respondent to consider using in his
meeting.
33.40 In an email on 5 March 2012 at 21.22 the First Respondent had emailed the Third
Respondent. At the conclusion of that email he had stated:
“We need to get [KV] and [Person A] in the right place. I am not in a fit state to
achieve that and I would not have anyone other than you and Martin on the job”.
33.41 This was clearly an encouragement to the Third Respondent to ensure that KV went
along with the proposed outcome.
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33.42 On 8 March 2012 at 10.13 the First Respondent had emailed the Third Respondent,
copying in the Fourth Respondent. The full email is set out in the Schedule of Emails.
The email contained an analysis by the First Respondent of EL’s likely position on the
outcome of the investigation, specifically that he would be of the same view as KV and
BA. As with the email of 2 March 2012 at 16.58, the First Respondent sent a suggested
script to the Third Respondent under words “In terms of what I would say if I were
you”.
33.43 The Tribunal found that this email was another example of the First Respondent seeking
to influence the way in which the Third Respondent should present matters.
33.44 The Tribunal dealt with the matter of informing JW under Allegation 1.2.3 so as to
avoid repetition.
sought to influence the extent and terms of communications with other staff involved
in decision-making about the outcome of the investigation into his conduct and had
done so improperly and by reason of his seniority in the Firm. The First Respondent
was in a unique position in the Firm and emails from him carried more weight than they
would coming from a more junior employee.
“101.6. the weight to be ascribed to his retention in the Firm”
33.46 The Tribunal noted that it was not improper for an employee facing a disciplinary
process to make representations to the effect that they should be allowed to keep their
job. The First Respondent was therefore entitled to make those representations about
his own career prospects. The Tribunal again noted the lack of formal processes in place
and this meant that he had made those representations in a less formal way than might
otherwise have been the case. The Tribunal distinguished this from the conduct set out
in particular at 101.5 as the First Respondent had crossed the line and sought to
influence how information was put to key decision makers in order to help achieve the
outcome he wanted. That was improper but it was not improper to make representations
that his departure would be a loss to the Firm.
“101.7. the weight to be ascribed to his career prospects including his prospects of further
promotion”
33.47 As with particular 101.6, the First Respondent was entitled to make representations
about his career prospects provided they were entirely exclusive to him and so it was
not improper to ask the decision-makers to take this into account.
“101.8. internal communications as to the prospects of Person A remaining with the Firm”
33.48 The First Respondent had already alluded to his belief that Person A may have
considered that a career at a City law firm may not be suitable for her in his email on
28 February 2012. It followed from that email that the First Respondent was expressing
a view that Person A may not be returning to the Firm for that reason.
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33.49 On 8 March 2012 at 13.28 the First Respondent had replied to an email from the Fourth
Respondent in which he stated “And to be clear too I am resigned to her going – [Person
T] will not be happy about that. I need to meet him to more generally apologise but
doesn’t seem clear she would have stayed with us anyway”. The email continued to
make general suggestions about the nature of any settlement agreement.
33.50 It had been put to the First Respondent by Mr Tabachnik that he had sought to “banish”
Person A from the Firm. The Tribunal noted that this was not pleaded as an Allegation
in the Rule 5 statement and accordingly made no finding in respect of that suggestion.
improperly sought, by reason of his seniority, to influence the conduct of the
investigation as it related to the prospects of Person A remaining at the Firm. The First
Respondent had no business in making any suggestions as to how communications with
Person A took place and should not have suggested that she might have left the Firm
anyway or that she was not cut-out for a career in that type of firm.
33.52 The Tribunal accepted that the First Respondent had, on occasion, been invited to
express a view by the Third and Fourth Respondents and further accepted that his
suggestions had often not been followed. The fact remained that the First Respondent
should not have expressed those views, having regard to his seniority in the Firm and
the fact that he was under investigation.
“101.9. the weight to be ascribed to confidentiality of the allegations, including non-disclosure

within the Firm”
33.53 The Tribunal’s findings in respect of this particular were the same as in relation to
particular 101.3. It was not improper for the First Respondent to ask for matters to be
kept confidential from the Firm at large.
“101.10. the terms of correspondence notifying him of the outcome of the investigation;
33.54 The Tribunal reviewed the emails concerning the wording of the final warning letter.
The Tribunal considered that it was very unwise for the First Respondent to have played
a role in the wording of his own disciplinary letter. However, the letter was part of the
outcome of the investigation that related to him personally and linked to that was the
fact that he had been encouraged to make comment on the draft. The Tribunal was not
satisfied that it was improper for him to have made those comments.
33.55 The final particular was “101.11 the outcome of the investigation.” The Tribunal had
addressed this when considering particulars at 101.5-101.10 and did not need to repeat
all it had said.
Allegation 1.2.3
33.56 The Tribunal found that the email the First Respondent sent to the Fourth Respondent
asking him to ensure that JD did not mention the matter to JW was improper. The First
Respondent knew that the procedures required JW to be made aware of matters such as
this. He was the Managing Partner and it was inconceivable that he could not be aware
that this requirement existed or that it applied to him as well as others.
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33.57 The First Respondent had immediately perceived there to be a risk of Person A bringing
legal action against the Firm as a result of his actions, as was clear from his email of 28
February 2012 at 20.29 when he referred to the possibility that Person A may threaten
to sue the Firm. The Tribunal accepted that it would not have been JD’s place to make
the notification to JW. However, the fact that the First Respondent actively sought to
ensure that he did not do so was an improper influence that would not have occurred
but for his seniority in the Firm. The Tribunal was satisfied beyond reasonable doubt
that this element of the Allegation was proved.
33.58 The Tribunal found the factual basis of Allegation 1.2 proved beyond reasonable doubt.
33.59 The Tribunal considered if the factual findings were such as to give rise to a finding of
professional misconduct. The Tribunal was satisfied beyond reasonable doubt that for
the First Respondent to improperly influence an investigation into his own misconduct
and the outcome of that investigation did amount to professional misconduct.
33.60 Principle 2
33.60.1 The Tribunal again applied the test in Wingate when considering the question
of integrity. The Tribunal found that in seeking to exert his influence in the
way he had done, the First Respondent had behaved in way that lacked moral
soundness. It was wrong for him to have sought to influence the conduct of
the investigation into his own misconduct. It was also wrong for him to have
sought to influence those aspects of the outcome that did not exclusively
relate to him or to advise how the decision that had been taken could be
presented so as to ensure its approval, ultimately from EL. This had the
potential to undermine the integrity of the investigation and demonstrated a
lack of integrity on the part of the First Respondent. The Tribunal recognised
that some of the emails were not unsolicited and that he had been encouraged
to offer opinions at times, for reasons dealt with by the Tribunal when it
considered the position of the Third and Fourth Respondents. However, the
First Respondent was in a very senior position and should not have sought to
influence matters regardless of whether or not he thought his comments were
welcome.
33.60.2 The Tribunal found the breach of Principle 2 proved beyond reasonable
doubt.
33.61 Principle 6
33.61.1 The Tribunal found that the public would expect that serious allegations of
misconduct were investigated without the First Respondent seeking to
influence the conduct of them. Further they would not expect that the
perpetrator of the misconduct would seek to have any involvement in the way
in which the complainant was dealt with. The Tribunal found the breach of
Principle 6 proved beyond reasonable doubt.
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33.62 Principle 8
33.62.1 The First Respondent’s role in the Firm was central to Allegation 1.2. The
senior nature of the role meant that he was someone in a position of influence
and he therefore had to ensure that he did not seek to use that influence to
have a bearing on the conduct of an investigation in to serious matters. The
First Respondent had departed from the requirements of his role and the
Tribunal found the breach of Principle 8 proved beyond reasonable doubt.
34. Allegation 1.3
34.1 The Applicant’s case was that the First Respondent was aware by no later than March
2012 that the Firm had made a finding that his conduct amounted to a “serious error of
judgement”, the Firm having imposed a written warning on the First Respondent. That
warning, signed and accepted by the Respondent, recorded that the conduct “must not
be repeated and that the Firm had considered the full range of sanctions” available to
it. Mr Tabachnik submitted that the Firm’s investigation, communicated to the First
Respondent, had found him guilty of serious misconduct.
34.2 It was submitted that the First Respondent was further aware, from the email that he
had received from PE on 16 February 2012, that sexual harassment would be viewed
as gross misconduct. The Firm’s findings should therefore have been reported to the
SRA and in not doing so the First Respondent had failed to achieve Outcome 10.4 and
had failed to comply with his legal and regulatory obligations and deal with his
regulator in an open, timely and co-operative manner in breach of Principle 7.
34.3 Mr Treverton-Jones submitted that this was an unrealistic allegation in circumstances

in which nobody connected with the case thought that the duty to report had been
triggered. He adopted the submissions made by Mr Coleman on this point.
34.4 Mr Treverton-Jones repeated his earlier submissions as to the low level of gravity in
the context of such incidents and that the First Respondent had therefore not been guilty
of professional misconduct, let alone the “serious misconduct” referred to in the
Outcome. The Firm had not made a finding of serious misconduct against Mr Senior
within the meaning of that term in Outcome 10.4.
34.5 Mr Treverton-Jones reminded the Tribunal of the Fourth Respondent’s report in 2015
and submitted that it was “telling” that the SRA had done “absolutely nothing” to
investigate at that stage.
34.6 Mr Treverton-Jones submitted that there was a pleading point in that Outcome 10.4 was
not aimed at self-reporting, unlike Outcome 10.3.
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34.7 The Tribunal had found that the First Respondent had committed serious professional
misconduct by his actions as set out in Allegations 1.1 and 1.2. The Tribunal considered
the construction of Outcome 10.4 and was satisfied that it applied to self-reporting as
well as to reporting the misconduct of others. The term “serious misconduct” must refer
to “professional misconduct” as the Outcome was part of a Code of Conduct for the
regulation of professionals.
34.8 The Tribunal then considered whether there was a subjective test in determining
whether the absence of a report amounted to a failure to achieve Outcome 10.4. If the
test was purely objective then the First Respondent should have self-reported as, on the
Tribunal’s findings, he had committed serious misconduct. If the test was subjective
then the Tribunal had to consider the First Respondent’s state of knowledge at the
material time.
34.9 The guidance available in 2012 in relation to Outcome 10.4 was limited. The Tribunal
was told that the Applicant had confirmed in correspondence in these proceedings that
the SRA had relied on the guidance that attached to the nearest equivalent rule under
the SRA Code of Conduct 2007, namely guidance note 36 to Rule 20.06 which stated:
“Whether or not “misconduct” can be considered “serious”, and whether or not

a firm’s financial difficulties could put the public at risk, will depend on the
circumstances. In general, any conduct involving dishonesty or deception or a
serious criminal offence would amount to “serious misconduct”.”
34.10 The Tribunal had regard to the fact that the 2019 Code was explicit that the there was a
subjective element to the reporting requirements, now contained in Rules 7.7 and 7.8,
which referred to reasonable belief as follows:
“7.7 You report promptly to the SRA or another approved regulator, as

appropriate, any facts or matters that you reasonably believe are capable of
amounting to a serious breach of their regulatory arrangements by any person
regulated by them (including you).
7.8 Notwithstanding paragraph 7.7, you inform the SRA promptly of any facts
or matters that you reasonably believe should be brought to its attention in order
that it may investigate whether a serious breach of its regulatory arrangements
has occurred or otherwise exercise its regulatory powers.”
34.11 The Tribunal determined that where serious misconduct was of the type specifically
referred to in the guidance in place at the material time then there was a clear
requirement to report this. In this circumstance, the only question for a Tribunal in
determining whether a failure to achieve Outcome 10.4 had occurred was an objective
one, namely, had the individual reported the misconduct.
34.12 However, where the serious misconduct was not specifically referred to in the guidance
in place at the material time then the requirement to report was not as clear. In those
circumstances the Tribunal determined that was a subjective element to Outcome 10.4.
This was one such case. The question for the Tribunal in relation to this Allegation was
79
whether the First Respondent believed that he had committed serious misconduct of the
type that needed to be reported to the SRA. The Applicant had the burden of proving
beyond reasonable doubt that the First Respondent held such a belief. The First (or any)
Respondent’s state of knowledge did not have to be reasonable, it merely had to be
genuine.
34.13 The Tribunal considered the First Respondent’s state of knowledge at the material time.
It was clear from the First Respondent’s evidence that he did not consider himself, at
the time or since, to have committed serious professional misconduct. His conduct was
described in the final warning letter as a “serious error of judgement” and none of the
contemporaneous emails before the Tribunal described his conduct as “misconduct”,
“serious misconduct”, “professional misconduct” or “serious professional misconduct”.
There was no reference in any of the notes or emails to a reporting obligation being in
the contemplation of anyone and this included the notes of the legal advice from Lewis
Silkin.
34.14 The Tribunal noted that nobody at the Firm had considered it reportable until at least
2015 when the Fourth Respondent made a report to the SRA in circumstances which
are set out under Allegation 4.3 below. The Tribunal rejected the submissions that the
absence of a report by anyone else was some sort of defence to an allegation of failing
to report/self-report. There could be a situation in which a large number of people all
made the same mistake. That would not mean that it was not a mistake. The relevance
of the absence of a report by anyone else was on the First Respondent’s state of
knowledge as to whether he had committed an act of serious misconduct that gave rise
to a reporting requirement. It provided corroborative evidence of the fact that the
question was not even considered by the First Respondent and would not have come up
in discussions with him.
34.15 The Tribunal was not satisfied beyond reasonable doubt that the First Respondent
considered his conduct to be reportable under Outcome 10.4. The Tribunal was
therefore not satisfied that the absence of such a report represented a failure to achieve
that Outcome. Allegation 1.3 was therefore not proved.
35. Allegation 2.1
35.1 Mr Tabachnik relied on the documentary evidence in this matter. He had put his case
to the First, Third and Fourth Respondents in this matter as well as to Mr Strivens. The
Tribunal had therefore heard very extensive cross-examination of four individuals and
was very clear as to the Applicant’s case. The submissions are therefore only briefly
summarised again below.
35.2 The Applicant’s case was that the conduct of the First Respondent was known, almost
immediately upon Person A’s complaint, to very senior figures within the Firm,
including the Third and Fourth Respondent and Person T. Within a week, a wider group
of very senior staff within the Firm, were aware of the broad nature of Person A’s
complaint and the First Respondent’s acceptance that he had acted inappropriately.
They were aware of Person A’s absence from the office and of the First Respondent’s
involvement in the investigation. At no time had any of those individuals caused the
80
global Firm’s General Counsel to be notified despite the email from PE, circulated of
days before the incident. They similarly did not cause JW to be informed.
35.3 The Applicant’s case as a whole was that the First Respondent had been allowed
actively to participate in the conduct and outcome of the investigation. There had been
no formal record of the investigation nor its outcome retained. It was submitted that the
only plausible explanation for this was that the First Respondent had been treated
unduly favourably by reason of his seniority and that greater weight had been attached
to his interests than to those of Person A.
35.4 Mr Tabachnik submitted that the public would expect a firm to apply its own
disciplinary process in respect of serious complaints against all staff, regardless of
seniority and not to allow that person to have undue access to and influence over, the
conduct and outcome of an investigation by reason of seniority. It was submitted that
the Firm had preferred the interests of the First Respondent and those of the Firm over
Person A. Mr Tabachnik submitted that the Firm had breached Principle 6 and 8 by
reason of its conduct in relation to this matter.
Second Respondent’s Submissions
35.5 Ms Robertson had cross-examined the witnesses and the other Respondents in detail
during the course of the hearing and the Second Respondent’s case was evident from
those examinations. Her submissions are summarised below, but the Tribunal had
regard to the totality of the Second Respondent’s case as argued when considering the
Allegations.
35.6 Ms Robertson submitted that what had happened with Person A during the incident was
“shaming and shameful” but it had been seen at the time as a one-off incident in an
otherwise exemplary career on the part of the First Respondent. The incident had led to
a swift investigation into facts that appeared straightforward and the extent of that
investigation had seemed appropriate to those involved at the time.
35.7 Ms Robertson submitted that the case had been brought due to the emails that had
passed between the First, Third and Fourth Respondents and it was reasonable that an
explanation was given for those emails. Ms Robertson submitted that the Applicant had
to demonstrate actual influence had occurred. If the First Respondent had tried to
influence the investigation but had been unsuccessful then the case against the Second,
Third and Fourth Respondents should fail.
35.8 Ms Robertson told the Tribunal that the Second Respondent agreed that some of the
First Respondent’s emails were inappropriate and were an attempt to influence the
Third Respondent. The Second Respondent accepted the Third Respondent’s evidence
that he was not influenced by the First Respondent’s emails and neither was anyone
else involved in deciding the outcome. Ms Robertson submitted that it was an error of
judgement on the part of the Third Respondent not to show the emails to PR or
Mr Strivens.
35.9 Ms Robertson told the Tribunal that the Second Respondent agreed that the Fourth
Respondent was not a decision-maker as regards the outcome for the First Respondent.
The Fourth Respondent had taken appropriate steps in seeking advice from Lewis Silkin
81
and escalating the matter to others. Ms Robertson submitted that it was an error of
judgement for the Fourth Respondent to have expressed himself in the terms he did in
some of his emails to First Respondent, but accepted that the outcome had not been
influenced by them.
35.10 In relation to the Second Respondent’s response to the EWW letter, Ms Robertson
submitted that the deadline the SRA set meant that the Second Respondent had not had
sight of the other Respondents’ explanations at the time it was sent. The Second
Respondent’s position had evolved since the letter was sent as it took account of the
further information that came to light.
35.11 Ms Robertson invited the Tribunal to accept the evidence of Mr Strivens, which was,
she submitted, “plainly honest, frank and thoughtful”. It was “completely unvarnished,
and conspicuously candid and objective”. He was a witness who had sought to assist
the Tribunal without fear or favour to any person or party to this case. Ms Robertson
submitted that he would have been equally independent during his involvement in this
matter in 2012.
35.12 Mr Strivens had been clear that as far as he was concerned, the decision-makers for the
Firm were himself, the Third Respondent and PR. Neither SG nor Person T had played
a role in respect of the matters that were directly relevant to the Allegations. EL had to
approve the decision on behalf of the global Firm, which following a meeting with the
Third Respondent, when EL had questioned him in detail.
35.13 Ms Robertson reminded the Tribunal that there was no allegation of lack of integrity
against the Third or Fourth Respondents but that the Applicant had sought to put a
construction on the emails which was inconsistent with good faith. Ms Robertson
submitted that the Tribunal should approach the case by considering whether that
construction was consistent with the character evidence adduced in respect of the Third
and Fourth Respondents.
35.14 Ms Robertson submitted that there was “a world of difference” between the Third
Respondent misjudging the tone of the communications in good faith and allowing
himself to be improperly influenced and Ms Robertson invited the Tribunal to accept
the Third Respondent’s case on this point. Ms Robertson reminded the Tribunal of the
First Respondent’s evidence that he had made a conscious decision to confine his
communications to the Third and Fourth Respondent and had not thought it right to
communicate with the other decision makers.
35.15 In relation to the Fourth Respondent, Ms Robertson submitted that some of his language
had been “ill-judged” but that the emails were private exchanges in the context of both
the First and Fourth Respondents being aware that the decision was out of the Fourth
Respondent’s hands.
35.16 Ms Robertson invited the Tribunal to conclude, consistent with Mr Strivens’ evidence,
that any errors of judgement made by the Third and Fourth Respondents were made in
good faith.
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35.17 Ms Robertson reminded the Tribunal of various sections of the evidence given by the
Third and Fourth Respondents as to their state of knowledge. The state of knowledge
of other individuals would also become relevant. She submitted that there was nothing
in the email exchanges that were visible to PR or Mr Strivens that would have indicated
to them that the First Respondent was sending inappropriate emails that sought to
control the process, something Mr Strivens had confirmed in his evidence.
35.18 Ms Robertson submitted that Person B, Person C and JB had offered Person A empathy
and support immediately after the incident and had reassured her that she would be
supported in raising the matter. Ms Robertson reminded the Tribunal of Person B’s
evidence to the effect that she had considered the incident highly unusual and atypical
in a firm where the culture strongly promoted respect in the workplace and diversity
and inclusion. Ms Robertson submitted that the approach taken to reaching a conclusion
on Person A’s grievance, and on the sanction to be applied the First Respondent was
consistent with the advice that the Third Respondent had received from the Fourth
Respondent as well as the Firm’s policies and the arrangements put in place by himself,
the Third Respondent and KV.
35.19 Ms Robertson told the Tribunal that confidentiality had been a concern for both Person
A and the First Respondent. Person A would have felt less able to return to work if an
increasing number of people became aware of the incident. She further submitted that
good practice required that the matter be dealt with swiftly. There was therefore a
“difficult and delicate balance to strike in terms of who to involve in the decision, how
swiftly to progress and, related to that, quite how detailed an investigation, and
documentation of that investigation, was necessary in order for the process to meet its
objectives”. Ms Robertson submitted that even if there were aspects of that, which could
have been done differently, at the time these were reasonable judgements and could not
35.20 Ms Robertson submitted that at the time the decision was made by the Firm on
6 March 2012 it was still hoped that Person A would return to work. Person A had not
at that stage stated that she would not return unless the First Respondent left the Firm.
Person T had sought to persuade her to remain at the Firm and had written positive
references for her indicating his disappointment that she had left. Ms Robertson
submitted that this was evidence that Person A’s genuinely held belief that she had been
“cast aside” by the Firm was mistaken. The fact that she did leave was a matter of
sadness to the Firm. The suggestion that the order of decision-making should have been
such that Person A’s position was determined first was not consistent with the advice
from JD and was not realistic given that Person A wanted to know what would happen
with the First Respondent before deciding on her own position.
35.21 Ms Robertson submitted that the Third Respondent had been clear that it was his
decision not to tell JW and was not influenced by the First Respondent. Ms Robertson
submitted that the suggestion from the Fourth Respondent that he had concerns about
JW maintaining confidentiality was “patently unfounded”, given that JW was trusted
with other sensitive partner matters. In relation to PE, Ms Robertson submitted that all
the relevant witnesses had been consistent that they had not considered themselves
under an obligation to notify him.
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35.22 On the question of attribution, Ms Robertson submitted that this did not need to be
addressed if the Tribunal was with her on her submissions as to the facts or in any event
given that no joint enterprise was pleaded by the Applicant. Any errors of judgement
by the Third or Fourth Respondents did not amount to professional misconduct and so
the question of attribution did not arise.
35.23 Ms Robertson made a number of submissions on what she argued were un-pleaded
criticisms of the Second Respondent made by Mr Tabachnik. These are not set out here
as the Tribunal confined itself to the Allegations as pleaded in the Rule 5 Statement.
35.24 Ms Robertson told the Tribunal that the Firm had taken the events of 2012 very
seriously. It had accepted that there have been important lessons to learn and it had
taken concrete steps to address these lessons, as set out in the Answer.
35.25 The Tribunal considered the evidence in respect of the Third and Fourth Respondent
before doing so in respect of the Second Respondent. The case against the Second
Respondent was not wholly dependent on the Tribunal’s findings in respect of the Third
and Fourth Respondents, but those findings were plainly highly relevant. The
Tribunal’s findings in respect of the Third and Fourth Respondents are set out below
with the Tribunal’s full reasons. It is sufficient at this stage to record simply that all the
Allegations against those Respondents were not proved. The detailed discussions of the
particulars set out at 2.1.1-2.1.4 inclusive are contained below and the findings in
respect of the Second Respondent should be read in conjunction with those in respect
of the Third and Fourth Respondents.
35.26 The Tribunal found that it was inconsistent with the evidence to make a finding of
professional misconduct against the Second Respondent when two key individuals
within the Firm were not the subject of such a finding. The Third Respondent had been
a member of Mancom and of those on Mancom had more involvement in this matter
than anyone else. The Fourth Respondent had been the most senior individual
responsible for HR matters. The Applicant had accepted, as had the Tribunal, that the
Third and Fourth Respondents had acted in good faith. The Second Respondent,
through the Fourth Respondent, had taken independent legal advice and had followed
it.
35.27 The Tribunal found that Mr Strivens had been a thoughtful and truthful witness. He had
been careful to distinguish between reconstructed evidence and direct recollection. It
was clear to the Tribunal that he had wanted to pause before making decisions or giving
answers so as to be able to give as much information as he was able to. There were
some matters on which he had not been able to assist the Tribunal, through no fault of
his own.
35.28 The Tribunal found that there should have been a clearer and more independent process
for dealing with issues such as this. It was clearly unwise for the matter to be handled
by individuals so close to the First Respondent. This had undoubtedly contributed to
the email exchanges which are dealt with below. It also led to the errors of judgement
and mistakes made by the Third and Fourth Respondents detailed below. There should
have been a more formal approach and one in which everything was committed to
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writing. The Second Respondent had itself volunteered its own criticisms of how
matters had been handled.
35.29 The email exchanges clearly required investigation and explanation. This had been
provided in these proceedings. The question for the Tribunal was whether the mistakes
and errors of judgement that did occur amounted to professional misconduct. The
Tribunal was not satisfied beyond reasonable doubt that they did.
35.30 The Tribunal found Allegation 2.1 not proved.
36 Allegation 2.2
36.1 The Applicant’s submissions in relation to this Allegation were similar to those made
in Allegation 1.3, this time from the position of the Second Respondent.
36.2 The Second Respondent was aware by no later than March 2012 of the finding that the
First Respondent’s conduct amounted to a “serious error of judgement”, having
imposed the written warning on him. The Second Respondent had not reported the
First Respondent’s conduct, or the Firm’s findings in respect of it, to the SRA in 2012.
36.3 In 2014, JW became aware of the First Respondent’s conduct, and the Firm’s findings
in respect of it but again no report was made.
36.4 In 2016, the matter became more widely known within the Firm. Again, however, no
report was made to the SRA. It was submitted that in failing to make those reports, the
Second Respondent had failed to comply with its reporting obligation under Outcome
(10.4) and failed to comply with its regulatory obligations and deal with its regulator in
an open, timely and co- operative manner in breach of Principle 7.
36.5 Ms Robertson reminded the Tribunal of the evidence of the Third and Fourth
Respondents that it did not occur to them that the incident was reportable to the SRA.
Mr Strivens had also told the Tribunal that it did not occur to him that the First
Respondent’s conduct was reportable.
36.6 The Applicant did not allege recklessness or manifest incompetence and Ms Robertson
submitted that it was illogical for someone who considered reporting and decided not
to be less culpable than someone who did not consider it at all. Ms Robertson referred
to the SRA Enforcement Policy which stated that it would not prosecute mistakes made
in good faith about reporting. Therefore, even if there was an error by the Third and
Fourth Respondents, which was not accepted, this could not be more than an honest
mistake and could not amount to professional misconduct.
36.7 Ms Robertson noted that no reports were made to the SRA between 2010 and 2013, by
firms in respect of sexual misconduct not involving clients or a criminal offence. In
contrast, 21 such reports were made in 2018.
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36.8 Ms Robertson submitted that there was no liability for not having reported on the basis
of the information that was known to the Third Respondent, Fourth Respondent or PR
in 2012. Therefore, there could be no liability on the part of those who knew less about
it at a later stage.
36.9 The Tribunal had discussed the nature of the reporting obligation when considering
Allegation 1.3 and specifically the subjective nature of that obligation. The Third and
Fourth Respondents’ cases in respect of this are set out below. The Tribunal found that
nobody at the Firm considered that the matter was reportable. In some cases, this may
have been because individuals did not apply their mind to it or it may have been because
they did consider it but satisfied themselves that the matter was not reportable. This
was clearly an error, as implicitly acknowledged by the Second Respondent in its EWW
response when it confirmed that it would report such matters now and would have done
so in 2012 if it knew then what it knows now. While the Tribunal found that the matter
was reportable for the reasons set out in Allegation 1.3, it was not satisfied beyond
reasonable doubt that anyone had considered it be so at the time. The failure to report
in those circumstances as they were in 2012 did not amount to professional misconduct.
The Tribunal therefore found Allegation 2.2 not proved.
37. Allegation 3.1
37.1 As was the case with the other Respondents, Mr Tabachnik relied on the documentary
evidence in this matter. He had put his case to the Third Respondent in the course of
detailed cross-examination. The Applicant’s submissions are therefore summarised
briefly below in relation to Allegations 3.1 and 3.3.
37.2 Mr Tabachnik made expressly clear in his opening that it was no part of the Applicant’s
case that the Third (or Fourth) Respondent had acted in bad faith or lacked integrity.
Mr Tabachnik submitted that he had, however, “got this very badly wrong”.
37.3 In his opening, Mr Tabachnik had made reference to a “joint enterprise”. However,
during cross-examination of the Third Respondent Mr Tabachnik clarified that he was
not alleging that there had been a joint enterprise, although he suggested that the First
Respondent may have thought he was part of one.
37.4 The Applicant’s case was that the Third Respondent knew of the First Respondent’s
conduct in relation to the investigation as set out in Allegation 1.2. The Third
Respondent had continued to communicate with the First Respondent in relation to four
specific areas:
• Communications with Person A;

• Communication with others in the Firm;
• The likely outcomes of the response
• Prioritising reputational considerations.
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37.5 Mr Tabachnik submitted that the manner in which the investigation was conducted was
inconsistent with the conduct of an independent investigation. The Third Respondent
had accepted the role as an investigator notwithstanding his close working relationship
with him. Mr Tabachnik criticised the Third Respondent’s failure to obtain an account
from Person A or from the First Respondent of the matters giving rise to Person A’s
complaint or the basis on which the First Respondent disagreed with any parts of the
complaint. It was submitted that matters had proceeded from the outset on the basis that
the First Respondent’s interests were aligned with those of the Firm and that the First
Respondent should remain at the Firm was an appropriate outcome.
37.6 The Applicant’s case was that the Third Respondent had failed to give due weight the
advice from JD which, Mr Tabachnik suggested was to the effect that dismissal would
be a proportionate response.
37.7 It was submitted that the Third Respondent had failed to give due weight to the Firm’s
Disciplinary Policy and had given undue weight to the First Respondent’s wishes,
including acquiescing to his desire that JW not be informed.
37.8 Mr Tabachnik submitted that the Third Respondent had failed to act independently of
any influence which the First Respondent sought to exercise by reason of the First
Respondent’s seniority and in doing so had breached Principle 3
37.9 Mr Tabachnik submitted that the public would expect a solicitor to carry out an
investigation such as this in a manner which did not allow the subject of an investigation
improperly to seek to influence the conduct and outcome of it. In failing to do so he
submitted that the Third Respondent had breached Principle 6 and Principle 8 in that
he was said to have failed to act in accordance with proper governance and risk
management principles.
Third Respondent’s Submissions
37.10 Mr Coleman had cross-examined the witnesses and the other Respondents in detail
during the course of the hearing and the Third Respondent’s case was evident from
those examinations. His submissions are summarised below, but the Tribunal had
regard to the totality of the Third Respondent’s case as argued when considering the
Allegations.
37.11 Mr Coleman submitted that the Tribunal was entitled to consider the Third
Respondent’s character and whether it was plausible that he would have permitted the
First Respondent to influence him in the manner alleged. Mr Coleman submitted that
the Third Respondent was someone who was strongly committed to diversity and social
justice and that this had informed his approach to the investigation. The Tribunal was
reminded that he had stated in emails at the time that he was concerned “to retain focus
on doing what is right”; wanted “to be very careful to treat [Person A] fairly, properly
and demonstrably in line with best practice” and was willing to “accept any outcome if
I feel I have behaved correctly [...]”.
37.12 Mr Coleman submitted that the Third Respondent had been reluctant to conduct the
investigation but had agreed to do so out of a sense of professional obligation. His
involvement had not been initiated by the First Respondent. It was the Fourth
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Respondent, acting on advice from JD, who had approached him. In the absence of an
established procedural framework, the Third Respondent had to identify for himself the
best way to proceed.
37.13 Mr Coleman submitted that the Third Respondent had informed the First Respondent
that exclusion from the Firm was an option. This was reflected in the nature of the
emails that followed this meeting.
37.14 The First Respondent was not consulted before the Third and Fourth Respondents
escalated matters by consulting KV. The structure of the decision-making process was
agreed with KV, in accordance with JD’s advice, and was not influenced by the First
Respondent.
37.15 Mr Coleman submitted that the Fourth Respondent initially controlled the investigation
of the facts, followed by the Third Respondent. He submitted that the First Respondent
had not exercised, or attempted to exercise, any control over that process. Mr Coleman
reminded the Tribunal of the evidence of the meeting with the First Respondent at
which the Third and Fourth Respondents confronted him about the differences in the
account between himself and Person A. Mr Coleman reminded the Tribunal that the
Third and Fourth Respondents had proceeded on the basis of Person A’s account.
37.16 The decision as to the outcome that should be recommended to the global Firm was
made by the Third Respondent, PR, Mr Strivens, SG and Person T, with the apparent
approval of the Fourth Respondent. The outcome was then approved by KV, BA and
EL.
37.17 Mr Coleman submitted that the account which the Fourth Respondent had obtained
from Person A was accurate and complete. The Fourth Respondent then conveyed the
“full facts” to the Third Respondent, who had confirmed in his evidence that what he
was told was very similar to the evidence Person A gave to the Tribunal.
37.18 Mr Coleman told the Tribunal that the Third Respondent now considered that it would
have been better for him to have spoken to Person A or secured a written statement
from her. However, Mr Coleman submitted that doing so may have potentially
aggravated her distress and may well not have resulted in any additional information
being obtained given that she had already had two meetings about this. He submitted
that doing this was not required as a matter of conduct nor even good HR practice and
that the Third Respondent had cogent reasons for thinking that this was neither
necessary nor appropriate.
37.19 As to obtaining the First Respondent’s account, Mr Coleman submitted that the
Allegation was based on a false premise as the Third Respondent had obtained this
during meetings with the First Respondent on 29 February and 1 March. The 1 March
meeting was particularly difficult as it had involved the Third Respondent going
through Person A’s account and dealing with the First Respondent’s dispute as to
persistence.
37.20 Mr Coleman submitted that the need for expedition and the limits of the forensic
process did not mean that there had been any lack of focus or attentiveness. The Third
Respondent was aware of the importance of the matter. Mr Coleman reminded the
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Tribunal of the evidence of Person B who had confirmed that the incident was treated
“exceptionally seriously”.
37.21 Mr Coleman submitted that it was clear that the Third Respondent had genuinely
struggled as to how the LLP should respond to Mr Senior’s conduct but noted that the
Applicant’s case had not been that only the removal of the First Respondent from the
Firm was an acceptable outcome. It therefore followed that the sanction that was
imposed was within the range of reasonable outcomes. The First Respondent’s removal
from the Firm had been a real option and one which the Third Respondent had
considered. The eventual outcome arose from the JD advice, that it would be a
defensible outcome and from KV, who had suggested the ‘yellow card’. The Third
Respondent had engaged in discussions with a number of others too. Mr Coleman
submitted that this was further evidence that the outcome was not predetermined.
37.22 In relation to the issue of not involving JW, Mr Coleman submitted that the Allegations
were based on a significant factual error in that the Third Respondent had not
acquiesced in a proposal from the First Respondent but had independently decided not
to involve JW, for the reasons set out in his evidence. The Applicant had not identified
a regulatory obligation or Firm policy which mandated such a notification. Mr Coleman
submitted that the Third Respondent had taken great care to bring the incident to the
attention of the appropriate partners within the Firm, including the global Firm, whilst
balancing Person A’s concern for confidentiality.
37.23 In relation to the communications with the First Respondent, Mr Coleman submitted
that the Applicant’s case on the question of actual influence was “half-hearted” and,
“incoherent” as no Allegation of actual influence was made against the First
Respondent. Mr Coleman submitted that by not cross-examining on that specific issue,
the assertion of actual influence had been “quietly dropped”. The case against the Third
Respondent was therefore that he had allowed the First Respondent to attempt to do
something, which the Third Respondent knew could not be done, and which, in any
event, he prevented. Mr Coleman reminded the Tribunal on the evidence given by the
Third Respondent, in which he had given a detailed account of his communications
with the First Respondent. Mr Coleman submitted that the emails were between the
Third Respondent and someone who was in mental crisis, was socially isolated and who
lacked any professional support. The Third Respondent had been deeply disturbed by
this and he had decided to maintain regular contact with the First Respondent and to do
so with a degree of humanity and inclusiveness which would not otherwise have been
required. It was this context that, once explained, had brought about the Firm’s change
of position in respect of the Third Respondent.
37.24 As regards communications about the alcohol restrictions, Mr Coleman submitted that
it was perfectly proper for the First Respondent to be consulted about this as it was a
sensible step towards devising a practical regime.
37.25 In relation to the Applicant’s case that the First Respondent was involved in exchanges
concerning communications with Person A, Mr Coleman described the criticisms as
“superficial” as they failed to recognise that the First Respondent’s involvement on this
issue was appropriate and essential if the Firm was to secure Person A’s return to work.
The First Respondent would need to sign up to any message relayed to her to ensure it
was meaningful. The Fourth Respondent and SG had taken the same view.
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37.26 Mr Coleman submitted that the First Respondent’s involvement in the warning letter
was not improper as it was the First Respondent using his opportunity to ensure that his
perspective was taken into account rather than to direct or instruct its authors. Only
some of the First Respondent’s comments were taken into account and this
demonstrated the Third Respondent’s independence.
37.27 Mr Coleman submitted that the Third Respondent had disregarded communications
from the First Respondent that he had not thought appropriate, made clear that he was
in charge of the process and on occasion disagreed with the First Respondent.
Mr Coleman submitted that the communications with the First Respondent were not
professionally improper and the Third Respondent had not allowed the First
Respondent to improperly influence or seek to influence the investigation or its
outcome. Mr Coleman told the Tribunal that the Third Respondent did recognise
however that he could have managed things differently and had sought to learn from
this. In a similar situation in the future, for example, he would insist on more formal
structures and procedures. The Third Respondent also considered it would beneficial to
have such matters dealt with by another regional office. Mr Coleman submitted that it
was to the Third Respondent’s credit that he had made these self-criticisms.
37.28 The Tribunal had set out its finding in relation to the various stages of the investigation
when considering Allegation 1.2. The Third Respondent’s role was focussed on the
outcome of the investigation, having taken the matter over from the Fourth Respondent
who had conducted the factual investigation.
Allegation 3.1.1
37.29 The Tribunal noted that the wording of Allegation 3.1.1 referred to “conduct and
outcome” of the investigation. The wording of Allegation 3.1.2 referred to the
“outcome”. The Tribunal addressed the conduct of the investigation in Allegation 3.1.1
and dealt with the outcome in 3.1.2 to avoid duplication. The Tribunal had found in
Allegation 1.2.1 that the attempts to influence the conduct of the investigation were
directed to the Fourth Respondent and so it found Allegation 3.1.1 not proved in respect
of the Third Respondent.
Allegation 3.2.2
37.30 The improper attempts by the First Respondent to influence the outcome of the
investigation are set out in the Tribunal’s findings in relation to Allegation 1.2.2 and
are not repeated here. The Tribunal found that the Third Respondent had allowed the
First Respondent to seek to influence the conduct of the investigation as he had not
prevented or sought to prevent the First Respondent sending those emails and seeking
to exercise that influence. This was an error of judgement on the part of the Third
Respondent, for reasons that are discussed below.
37.31 In considering whether this amounted to professional misconduct the Tribunal

considered whether the Third Respondent had allowed the First Respondent to actually
influence the outcome of the investigation. The Tribunal found the Third Respondent
to have been a truthful and impressive witness who had acted in good faith throughout
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the investigation. He gave considered answers in his evidence and was prepared to
accept errors of judgment with the benefit of hindsight. The Applicant had also been
clear that the Third Respondent had acted in good faith. There had been no pleading to
the effect that this was some sort of ‘stitch-up’ to protect the First Respondent and there
was no allegation of a joint enterprise to cover matters up. This was the context in which
the Tribunal reviewed the email exchanges and assessed the Third Respondent’s
evidence.
37.32 The Tribunal was unable to find evidence of a decision taken that would not otherwise
have been taken, or of a decision that had only been taken, as a result of the First
Respondent’s improper attempts to influence the outcome of the investigation. There
was, for example, no evidence that the First Respondent would have been dismissed
had he not sought to influence matters or that he would have received a more severe
penalty short of dismissal.
37.33 There were some instances that positively demonstrated a lack of influence. In the email
exchanges of 29 February 2012 at 22.22 and 23.06 it was clear that the Third
Respondent had spelt out to the First Respondent the real possibility that he would have
to leave the Firm. There were other emails between the Third and Fourth Respondents
that referred to difficult conversations with the First Respondent, including the meeting
on 1 March 2012. This was consistent with the Third Respondent’s case that he had
given honest and at times unwelcome advice to the First Respondent. This had clearly
been difficult for the Third Respondent given the ongoing working relationship
between himself and the First Respondent. This was one of the reasons it would have
been preferable to have a more formal structure in place, as discussed in relation to
Allegation 2.1.
37.34 The Tribunal noted that there were numerous examples of emails from the Third
Respondent to the First Respondent that offered comfort and a degree of reassurance.
The emails tended to be informal in tone and content, which was not surprising given
their long working relationship.
37.35 The Tribunal found the First Respondent was responsible for the majority of these
emails and for putting the Third Respondent in the difficult position in which he found
himself. The Tribunal considered it unwise for the Third Respondent to have engaged
in some of these exchanges. He could have told the First Respondent, in unambiguous
terms, to desist on the basis that it was inappropriate for him to be seeking to influence
matters and it was regrettable that he had not done so. However, the Tribunal noted that
no inappropriate promises were made by the Third Respondent in these emails and the
Tribunal accepted the Third Respondent’s evidence that he had not taken any decision
that he would not have taken anyway, as a result of the First Respondent’s
communications.
37.36 The Third Respondent had told the Tribunal that he had significant concerns about the
First Respondent’s well-being and that this was behind his indulgence of the emails that
he received and partially behind requests for advice and guidance. This was consistent
with the character evidence that the Tribunal had read, which clearly showed the Third
Respondent to be a compassionate individual. The Tribunal accepted that the Third
Respondent had been attempting to manage the First Respondent’s personality at a time
when the First Respondent was in a particularly distressed state. It would have been
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better for someone else to have performed that supportive role, but the fact that the
Third Respondent did so did not amount to professional misconduct.
37.37 The Tribunal considered that the Third Respondent had made errors of judgement by
allowing the email exchanges to continue in the way that they did and by seeking advice
and guidance from the person under investigation. However, the Tribunal did not find
that the Third Respondent had been influenced or that he had allowed the outcome of
the investigation to be influenced and so it did not find that he had committed
professional misconduct.
37.38 The Tribunal found Allegation 3.1.2 not proved.
Allegation 3.1.3
37.39 The Tribunal considered firstly whether the Third Respondent had failed to cause the
complaint by Person A to be effectively conducted. The investigation into the complaint
itself led by the Fourth Respondent as the Third Respondent only became aware of the
incident as the investigation was reaching the outcome stage. However, it was clear to
the Tribunal that an investigation was conducted, during which the Fourth Respondent
and latterly the Third Respondent established the nature of the complaint. The Fourth
Respondent held two meetings with Person A for the specific purpose of establishing
what had taken place during the incident and how Person A wanted to proceed. The
Tribunal found that the Fourth Respondent accurately shared the information he
obtained with the Third Respondent. The Tribunal did not find that it was necessary for
the Third Respondent to meet Person A himself at the factual investigation stage in
those circumstances. Crucially, the complaint made by Person A was upheld and the
factual investigation was concluded with Person A’s account being accepted and
forming the basis of the discussions as to the outcome that followed. Insofar as there
was a discrepancy between what Person A had said and what the First Respondent had
said, this was resolved on 1 March 2012 on the basis of Person A’s account.
37.40 The Tribunal did not endorse the investigation into Person A’s complaint as an example
of best practice. The Tribunal was surprised that neither Person A’s account nor the
First Respondent’s account had ever been committed to writing, for example. However,
the investigation was sufficiently effective to ensure that Person A’s complaint was
upheld and that her narrative formed the basis of the subsequent decisions.
37.41 In those circumstances there was no need, from a regulatory perspective, for further
independent investigation into the complaint as where there had been any discrepancy
in the versions, Person A’s version was accepted and the First Respondent’s version
was rejected. The Tribunal was satisfied that the investigation had been sufficiently
independent and, for the purposes of assessing whether professional misconduct had
taken place, did not need to be investigated externally.
Allegation 3.1.4
37.43 The Tribunal found that there was a requirement in the Firm’s procedures for this to
have been shared with JW and PE. That clearly had not happened. The question for the
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Tribunal was whether this was a failure to follow internal procedures or whether it went
beyond that and amounted to professional misconduct.
37.44 The Tribunal again noted that the Applicant did not allege that the Third Respondent’s
failure to notify these individuals was the result of bad faith. The Tribunal also noted
that the Third Respondent had shared the details of the incident with a large number of
people at Mancom level and at global level. The Third Respondent had specifically
reported it at global Firm level when he spoke with KV. Mr JW regularly attended
Mancom meetings and there was no evidence that the Third Respondent had directed
or advised anyone not to tell him what had taken place.
37.45 The Tribunal was not satisfied beyond reasonable doubt that the failure to notify JW or
PE amounted to professional misconduct. The Third Respondent had shared the
information within the Firm, mindful as he did so of his obligation to respect
confidentiality. The Tribunal found Allegation 3.1.14 not proved.
38. Allegation 3.3
38.1 Mr Tabachnik submitted that the Third Respondent had made a finding in March 2012
that the First Respondent’s conduct amounted to a “serious error of judgement” and
“must not be repeated.” He submitted that this amounted to a finding of “serious
misconduct”, which had been communicated to the First Respondent. The Third
Respondent did not report the First Respondent’s conduct, or the findings in respect of
it, to the SRA and in doing so he had failed to comply with his reporting obligation
under Outcome 10.4 and had therefore breached Principle 7. Mr Tabachnik’s case on
this was fully explored in cross-examination.
38.2 Mr Coleman reminded the Tribunal that the Firm found that the First Respondent’s
conduct to be a serious error of judgement which was aggravated by his seniority. The
Third Respondent had considered it above, as reprehensible, unacceptable, and contrary
to both his own values and those of the Firm, but he had not considered it a matter of
serious professional misconduct, requiring a report under Principle 7 or Outcome 10.4.
The Third Respondent was aware of his reporting obligations but viewed this as a
partnership matter rather than a regulatory one.
38.3 Mr Coleman submitted that the Third Respondent was therefore not in breach of
Principle 7 or Outcome 10.4.
38.4 Mr Coleman submitted that Outcome 10.4 contained a subjective and an objective limb.
He submitted that judged by the reasonable consensus of professional opinion in 2012,
the First Respondent’s conduct was not serious professional misconduct of the kind
capable of engaging the reporting obligation. The SRA itself appeared not to have
considered the matter to constitute serious misconduct when the Fourth Respondent
reported it to them in 2015.
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38.5 If the Tribunal was not with him on that point, Mr Coleman submitted in the alternative,
that even if the conduct was reportable in 2012, the Third Respondent’s failure to
recognise it as such did not amount to professional misconduct. The SRA’s recent
consultation paper (August 2018) and consultation response (January 2019) concerning
the obligation to report serious misconduct, acknowledged that the reporting
requirement had become “insufficiently clear”.
38.6 The Tribunal had set out its finding that there was a subjective element to this reporting
requirement when it addressed it in relation to Allegation 1.3 above.
38.7 There was a conflict of evidence in relation to whether the Third Respondent considered
the requirement and decided not to, as the Fourth Respondent had told the Tribunal, or
whether it had not occurred to him at all as he had told the Tribunal. The Tribunal
accepted that both the Third and Fourth Respondents’ evidence on this point was based
on their genuine recollection, albeit one of them must have been mistaken. The Tribunal
could not be sure which of them was mistaken and in the circumstances the Tribunal
could not be sure that the Third Respondent had even considered the reporting
obligation. If he had considered it then he had clearly concluded that it did not need to
be reported.
38.8 The Third Respondent had described the First Respondent’s actions as a “serious error
of judgement” but had not described it as professional misconduct in the warning letter
or in any other document. The Third Respondent had not been advised by anyone else
that this amounted to professional misconduct. The Tribunal noted that the context was
one in which nobody else had considered it necessary to report it and while this was not
a defence in itself, the context was relevant. The legal advice from Lewis Silkin made
no reference to reporting obligations.
38.9 The Tribunal found that the matter ought to have been reported as the First Respondent
had committed serious professional misconduct and the Third Respondent ought to
have recognised that at the time. However, the Third Respondent’s belief did not have
to be reasonable, it only had to be genuine. The Tribunal accepted that the Third
Respondent genuinely did not consider the matter to be reportable and therefore his
failure to do so did not amount to professional misconduct.
39. Allegation 4.1
39.1 As with the Allegations in relation to the First, Second and Third Respondents,
Mr Tabachnik cross-examined the Fourth Respondent in detail and the basis of the
Applicant’s case was clearly expressed in the course of that.
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39.2 Mr Tabachnik made the same point in relation to the Fourth Respondent that he had in
relation to the Third Respondent, namely that it was not the Applicant’s case that the
Fourth Respondent had acted in bad faith or that he had lacked integrity. He also
confirmed that joint enterprise was not part of the case against the Fourth Respondent.
39.3 Mr Tabachnik submitted that the conduct of the First Respondent towards the
investigation into his own conduct was known to, and facilitated by the Fourth
Respondent in that he allowed the First Respondent to seek to influence the Firm’s
response, and continued to communicate with the First Respondent, including as to the
factors set out in relation to the Third Respondent in Allegation 3.1.
39.4 The Fourth Respondent had adopted a leadership role at the outset of the response to
the complaint against the First Respondent notwithstanding his close working
relationship with the First Respondent. The Applicant’s case was that the Fourth
Respondent had failed to provide the account which he had obtained from Person A of
the matters giving rise to Person A’s complaint and had failed to obtain any account
from the First Respondent. Mr Tabachnik submitted that the Fourth Respondent had
proceeded from the outset on the basis that the retention of the First Respondent was an
appropriate outcome. Mr Tabachnik submitted that the Fourth Respondent had also
failed to give due weight to external legal advice he had received or to the Firm’s
Disciplinary Policy. It was also alleged that he had taken steps to prevent the matter
coming to the attention of JW or PE.
39.5 Mr Tabachnik submitted that the manner in which the investigation was conducted was
plainly inconsistent with conducting an independent investigation and that there had
been an obligation on the Fourth Respondent to act independently. Instead the Fourth
Respondent had allowed the First Respondent to have frequent access to information
about the conduct and likely outcomes of the response, including reviewing and
commenting on the draft of the warning letter. In so doing the Fourth Respondent had
breached Principle 3.
39.6 Mr Tabachnik further submitted that the public would expect a very senior officer of a
law firm, asked to carry out an investigation to do so in a manner which did not allow
the subject of an investigation improperly to seek to influence its conduct and outcome.
In acting as he did, the Fourth Respondent had breached Principle 6.
39.7 Mr Tabachnik submitted that the Fourth Respondent had also breached Principle 8 in
that he had failed to carry out his role in the business, which was HR Director, in
accordance with proper governance and risk management principles, for the reasons set
out above.
Fourth Respondent’s Submissions
39.8 Mr Laidlaw had cross-examined the witnesses and the other Respondents in detail
during the course of the hearing and the Third Respondent’s case was evident from
those examinations. His submissions are summarised below, but the Tribunal had
regard to the totality of the Fourth Respondent’s case as argued when considering the
Allegations.
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39.9 Mr Laidlaw submitted that the Fourth Respondent had “reacted quickly,
sympathetically and in accordance with best practice” to Person A’s complaint. He had
understood that it would not be appropriate for him to have any part in the outcome as
far as the First Respondent was concerned, and he had no part in that throughout.
39.10 Mr Laidlaw submitted that the Fourth Respondent established quickly that the First
Respondent had admitted to the alleged misconduct. He had also taken independent
legal advice and acted in accordance with that advice, including handing the matter over
to the Third Respondent on 29 February 2012.
39.11 The Firm had followed a process suggested by KV, in which the Mancom partners,
along with SG and Person T arrived at a consensus as to how the First Respondent
should be dealt with, which was approved by EL on 15 March 2012. The Fourth
Respondent’s role was confined to providing support to the Third Respondent in respect
of the disciplinary investigation, assisting removing any risk of a repeat of the First
Respondent’s conduct, the production of the final warning letter and resolving Person
A’s grievance.
39.12 Mr Laidlaw submitted that the Fourth Respondent was aware that Person A had been
badly affected by the incident and was off work sick. He had therefore proceeded with
caution while also doing what he could to bring about her return to work. The Fourth
Respondent considered that Person A’s decision not to return was a matter of “sadness
and regret”.
39.13 Mr Laidlaw submitted that the Fourth Respondent had been in an impossible position
in that he had been deluged with calls and emails from the First Respondent, some of
which were inappropriate and offensive. The First Respondent was highly emotional
and this presented a challenge. However, at no time had the Fourth Respondent been
influenced to do anything he considered inappropriate.
39.14 The decision not to inform JW was made by the Third Respondent. The Fourth
Respondent was not in a position to take a decision as to whether or not to inform PE.
Mr Laidlaw submitted that the Applicant had not given appropriate weight to the Fourth
Respondent’s position in the Firm. He was not a lawyer or a partner and was operating
in the absence of specific guidance in highly unusual circumstances.
39.15 Mr Laidlaw submitted that while there could have been greater formality, the Applicant
had called no expert evidence to suggest that the Fourth Respondent had acted outside
the guidance issued to him by his own professional bodies. Further, any failings that
had occurred did not come close to amounting to professional misconduct.
39.16 Mr Laidlaw relied on and adopted some of the submission made by Ms Robertson and
Mr Coleman and did not therefore repeat them in his own submissions where they
covered the same points.
39.17 In addition to those points, Mr Laidlaw submitted that while the Fourth Respondent
was bound by the Code of Conduct, that Code applied in a different way to employees
and the Tribunal was invited to make proper allowance for the fact that the Fourth
Respondent was not legally qualified. Mr Laidlaw submitted that the public would have
different expectations of the employees of solicitors.
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39.18 Mr Laidlaw submitted that as from 29 February 2012, in many instances, the Fourth
Respondent was acting on the direction of the Third Respondent, under his supervision.
This included the discussions around the alcohol restrictions on the First Respondent.
Mr Laidlaw argued that there should be a higher threshold for the Applicant to meet
when its case, on a careful examination, amounted to an allegation that, in following
the instructions of the Third Respondent, the Fourth Respondent had committed
professional misconduct. It was in the public interest that solicitors’ employees should
follow directions, save obvious exceptions.
39.19 Mr Laidlaw reminded the Tribunal that the Applicant had confirmed that its case was
that the Fourth Respondent had acted in good faith. There was a distinction between
errors of judgement and professional misconduct. There was no alleged lack of integrity
and therefore the Tribunal would have to be satisfied beyond reasonable doubt that the
Fourth Respondent had acted with “extreme negligence” in order to find any
professional misconduct proved. The Tribunal was also reminded of the Fourth
Respondent’s expertise in the area of HR and invited to accept his evidence on those
areas, as well as the totality of his evidence.
39.20 Mr Laidlaw submitted that the Fourth Respondent’s role was very different to that of
the other Respondents. His role was to provide the Firm with advice, assistance and
guidance on HR matters but he had no authority or role to play in matters of partner
discipline.
39.21 Mr Laidlaw submitted that the Fourth Respondent had initiated the investigation of
Person A’s grievance and led it for 48 hours. The evidence had demonstrated that the
Fourth Respondent played no part in determining the outcome of the investigation.
39.22 Mr Laidlaw submitted that the Fourth Respondent’s evidence showed him to be
“intelligent, thoughtful, hardworking, committed to the highest of standards in respect
of those in his care and, by nature, a kind and a sympathetic individual”. Mr Laidlaw
submitted that this was consistent with the contemporaneous exchanges with the Third
Respondent.
39.23 Mr Laidlaw reminded the Tribunal of the relevant sections of the Dignity at Work
Policy, the Grievance Policy and the Disciplinary Policy. He submitted that the
Applicant had been unable to identify any clear breach of internal policy. It had not
referred to guidance from external HR bodies or called any expert evidence.
39.24 Mr Laidlaw took the Tribunal through the chronology of events. He submitted that the
evidence showed that he had ensured that Person A gave him a complete account of
what had taken place during the incident. At that stage Person A had referred to
‘clearing the air’ with the First Respondent and she had not said at any point that only
his departure from the Firm would be acceptable. The Fourth Respondent had
maintained the lines of communication between himself and Person A and this was
because he wanted her to be able to return to work.
39.25 In relation to the email to the First Respondent in which the Fourth Respondent had
written “I realise this is a really difficult situation but I’m confident we will get through
it”, Mr Laidlaw reminded the Tribunal of the Fourth Respondent’s evidence, that it was
no more than a phrase his mother might use when someone was faced with difficulty.
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Mr Laidlaw reminded the Tribunal that because the First Respondent had not been
suspended, the Fourth Respondent had to continue to deal with him on a daily basis and
on a range of subjects. However, for the reasons already outlined, the Fourth
Respondent had no part in the outcome of the investigation. Mr Laidlaw submitted that
the Applicant had read too much into conciliatory, supportive emails which had to be
considered in the context of the evidence as a whole.
39.26 Mr Laidlaw referred to the email from the First Respondent about the “big pay-off” and
submitted that the Fourth Respondent had not endorsed this view of Person A. The
Tribunal was reminded of the Fourth Respondent’s evidence about the “emotional
rollercoaster” of the First Respondent’s communications. Mr Laidlaw reminded the
Tribunal that the Fourth Respondent had maintained his position in that he sought
independent legal advice from Lewis Silkin.
39.27 Mr Laidlaw submitted that the Applicant’s characterisation of that legal advice was a
gross over-simplification. On a plain reading of the notes, along with Fourth
Respondent’s evidence it was clear that there were a range of appropriate outcomes,
which included requiring the First Respondent to leave the Firm. JD had also said that
the knowledge should be restricted to as few people as possible and he had not
suggested that it was necessary to report the matter to the General Counsel.
39.28 After the meeting at Lewis Silkin, the Fourth Respondent met with the Third
Respondent and provided him with the typed note of Person A’s account from the
previous day and all the advice that JD had given. Mr Laidlaw submitted that it was
difficult to see how the Fourth Respondent could be criticised. He had obtained a full
account from Person A, a confession from the First Respondent, legal advice from JD
and then and he had then handed the matter to the Third Respondent without further
reference to the First Respondent. Having done so, the Fourth Respondent had assisted
the Third Respondent with the HR aspects of the investigation. This mainly involved
him continuing to secure Person A’s return to work. The Fourth Respondent also
assisted the Third Respondent in relation to agreement as to the alcohol restrictions
proposed for the First Respondent. The Fourth Respondent had also sourced a template
for the warning letter, drawn up the agenda for the meeting on 6 March 2012 and
arranged the diversity training.
39.29 In respect of the chronology of events thereafter, Mr Laidlaw took the Tribunal through
this and in doing so covered areas explored in detail in the evidence of the witnesses.
Mr Laidlaw identified a number of instances where the Fourth Respondent had actively
taken a course that was contrary to a suggestion from the First Respondent.
39.30 Mr Laidlaw submitted that the Fourth Respondent should be given a measure of latitude
in his exercise of judgement in keeping the First Respondent up to date with relatively
innocuous details of whether Person A was likely to return, even if those details
occasionally went beyond what was strictly necessary. Mr Laidlaw submitted that there
was relatively little harm in affording the First Respondent an illusion of involvement
in a very stressful situation, given his personality type. This involved a difficult
balancing act and in as far as it may not have been entirely successful this did not
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Allegation 4.1.1
39.31 The Tribunal had found that the Fourth Respondent’s role in leading the investigation
was limited to the investigation of the facts following Person A’s complaint.
39.32 The Fourth Respondent had met Person A on two occasions, the first of those was
before he had spoken about the incident with the First Respondent. The Fourth
Respondent had sought independent legal advice and had acted on that advice, which
included handing the matter over to a partner, in this case the Third Respondent.
39.33 The Fourth Respondent had, in the same way as the Third Respondent, engaged in
numerous email exchanges with the First Respondent. The Tribunal had found that the
First Respondent’s attempt to influence the investigation by sending those emails was
improper.
39.34 The First Respondent had not sought to influence the investigation because of his health
but in order to protect his own position. However, the Third and Fourth Respondents
did perceive that there may be health issues involved and this had caused them to tread
very cautiously. They were trying to manage him while he was trying to manage the
process.
39.35 The Fourth Respondent, like the Third Respondent, made an error of judgement in
engaging with some of these emails and in failing to tell the First Respondent to stop
sending them. He had also made an error of judgement in updating the First Respondent
about his discussions with Person A, for example on 28 February 2012. There were
occasions when the Fourth Respondent had sought advice from the First Respondent.
Again, this was unwise, but his reasons for doing so were similar to those of the Third
Respondent. The Tribunal accepted the Fourth Respondent’s evidence that he found
himself in a difficult position because of his ongoing working relationship with the First
Respondent and because of his concern for the First Respondent’s welfare. The
Tribunal found the Fourth Respondent to be a credible, straightforward and truthful
witness.
39.36 In considering whether the Fourth Respondent’s errors of judgement amounted to

professional misconduct the Tribunal considered whether the Fourth Respondent had
allowed the First Respondent to actually influence the outcome of the investigation. As
with the Third Respondent, the Applicant had accepted that the Fourth Respondent had
acted in good faith.
39.37 The Tribunal found no example of a decision taken by the Fourth Respondent that was
taken because of anything said or done by the First Respondent by way of influence.
There were examples of the Fourth Respondent acting independently and this included
his obtaining external and independent advice from Lewis Silkin, which he
subsequently followed. The Fourth Respondent had met twice with Person A and had
accepted her account of the incident. When a discrepancy had arisen between elements
of her account and the First Respondent’s account, the Fourth Respondent, together
with the Third Respondent, had rejected the First Respondent’s account where it
differed from Person A’s at the meeting on 1 March 2012. The Tribunal was not
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satisfied that the Fourth Respondent had allowed the First Respondent to actually
influence him or the investigation.
39.38 In those circumstances the errors of judgement did not amount to professional
misconduct and the Tribunal found Allegation 4.1.1 not proved.
Allegation 4.1.2
39.39 The overwhelming weight of the evidence was that the Fourth Respondent was not a
decision-maker in this matter and had no role in determining the outcome of the
investigation. His involvement in the outcome was limited to assisting the Third
Respondent who had conduct of matters by that stage. The Tribunal found that the
Fourth Respondent’s level of involvement in the outcome of the investigation was too
limited for him to have been in a position to be influenced. He could have advised the
Third Respondent to tell the First Respondent to stop trying to influence matters, but
the failure to do so did not amount to professional misconduct. The ongoing exchanges
during the part of the investigation that was dealing with the outcome fell into the same
category as those involving the Third Respondent. They were ill-advised but not done
in bad faith on the part of the Third or Fourth Respondents and did not amount to
39.40 Allegation 4.1.2 was not proved.
Allegation 4.1.3
39.41 The Tribunal’s findings into the effectiveness of the investigation are set out in relation
to Allegation 3.1.3 above. The investigation had not been perfect and it could have been
handled better in some ways, examples of which are referred to elsewhere in this
Judgement. However, the investigation was sufficiently effective and the way it was
handled did not amount to professional misconduct. Person A’s account was taken with
care by the Fourth Respondent and was relayed accurately to the Third Respondent.
The First Respondent’s alternative version of parts of the incident were rejected and the
matter was therefore dealt with based on Person A’s account. In those circumstances
there was no need for further independent or external investigation, though the Tribunal
noted that the Fourth Respondent had sought independent and external advice during
his conduct of the investigation.
Allegation 4.1.4
39.43 The Fourth Respondent’s involvement in terms of leading the investigation was
short-lived and ended with him handing the matter over to a member of Mancom. The
failure to report the matter to JW may have been a breach of internal procedures but in
the context of handing the matter over to the Third Respondent, did not amount to
39.44 The Tribunal considered the exchanges involving the First Respondent and Fourth
Respondent about whether JD should notify JW. The First Respondent’s motives were
improper and that had led to the finding of professional misconduct on this point. The
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Fourth Respondent was ensuring that JD did not tell JW as it was not JD’s place to do
so. This did not amount to professional misconduct in the view of the Tribunal.
39.45 The Tribunal was not satisfied beyond reasonable doubt that the Fourth Respondent
had failed to cause information to be appropriately shared with in the Firm and/or with
JW. Allegation 4.1.4 was therefore not proved.
40. Allegation 4.3
40.1 Mr Tabachnik’s case was that the Fourth Respondent did not report the First
Respondent’s conduct, or the findings in respect of it, to the SRA between 2012 and
2015, something that was not disputed by the Fourth Respondent.
40.2 In 2015 the Fourth Respondent had stated, in a letter to the SRA, that “...I had been
required to conduct an investigation into an allegation of inappropriate sexual conduct
against a [redacted] by the Managing Partner, Gary Senior. ...Mr Senior was allowed
by the Firm’s Global Chairman to remain with the Firm which effectively meant that
the [redacted] had to leave, which she did. ..I was very unhappy with this outcome from
an HR perspective, as I did not agree with it...”
40.3 The SRA had requested that the Fourth Respondent provide further information but he
did not do so for reasons that were explored in cross-examination. Mr Tabachnik made
similar submissions as to the breach of Outcome 10.4 and Principle 7 that he had in
relation to the Third Respondent.
40.4 Mr Laidlaw adopted the submissions made by the First, Second and Third Respondents
in respect of this Allegation. He submitted that the points made by them applied with
even more force to the Fourth Respondent, who was not a solicitor, not an expert on the
Code of Conduct, and who would justifiably have relied upon his Principals to consider
and discharge the Firm’s reporting obligations. This was not part of his job description
and he had been clear in this evidence that he thought the Third Respondent and others
had turned their mind to this and satisfied themselves that there was no need to report
the matter to the SRA. The Third Respondent did not recall the conversation that the
Fourth Respondent was referring to, but in any event, Mr Laidlaw submitted, the Fourth
Respondent was entitled to leave this matter to the senior partners.
40.5 The Tribunal had already dealt with the subjective element of this requirement in earlier
Allegations.
40.6 The Fourth Respondent had reported the matter in 2015. He had told the Tribunal that
he had only done so as the result of legal advice. The Tribunal accepted this evidence
and was not satisfied beyond reasonable doubt that the Fourth Respondent actually
considered that it was reportable in 2012 or subsequently.
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40.7 The context of the Fourth Respondent’s failure to report was the same was that of the
Third Respondent. The Tribunal accepted that the Fourth Respondent genuinely did not
consider the matter to be reportable and therefore his failure to do so did not amount to
Previous Disciplinary Matters

(only relevant to the First Respondent for purposes of sanction)
41. There was no record of any previous disciplinary findings by the Tribunal in respect of
Mitigation
First Respondent
42. Mr Treverton-Jones told the Tribunal that the findings against the First Respondent
were a “devastating blow”. On any view it was a limited incident that had involved no
intimate touching, no force and no lewd comments. Mr Treverton-Jones described it as
“a failed pass, no more and no less”. The First Respondent had taken ‘no’ for an answer
after Person A’s phone rang.
43. The First Respondent had apologised within minutes to Person A, by email. He had
wished to do so in person but this had not been possible. If it had been, this case may
have been un-necessary. Mr Treverton-Jones submitted that there had been no attempt
to sweep the matter under the carpet. The First Respondent had advised the Fourth
Respondent to bring in another partner.
44. Mr Treverton-Jones reminded the Tribunal of the evidence of Mr Strivens, who had
agreed that the First Respondent’s deep remorse was absolutely genuine. The First
Respondent had apologised to all other members of the Firm in London and at global
level. The remorse was evident in the emails sent by the First Respondent, a number of
which were referred to by Mr Treverton-Jones specifically. The description of the
incident as “minor” had come in a letter from the First Respondent’s solicitors to the
SRA at a time when they were seeking to persuade it not to bring proceedings. This
should not be held against the First Respondent.
45. Mr Treverton-Jones told the Tribunal that the First Respondent had suffered extreme
mental distress. At the time he could only confide in the Third and Fourth Respondents.
He had already been punished twice for incident, once in 2012 and again in 2018 when
he was effectively dismissed from the Firm following the matter being reported in the
press.
46. Mr Treverton-Jones referred to two previous decisions by the Tribunal by way of

comparison. In Beckwith the respondent had been fined £35,000 for conduct that
included sexual activity in the complainant’s home. In Scott the respondent had been
suspended for 18 months for conduct that included the sending of explicit messages,
resulting in a Police caution.
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47. In relation to Allegation 1.2, there had been no deliberate attempt to interfere
improperly with process and no attempt to lobby any other decision makers. The First
Respondent was never told to stop emailing or to back-off and, had he been told to, then
he would have complied. The Tribunal was invited to conclude that the informal
procedures in place meant that the First Respondent had no structured opportunity to
make submissions, thereby making informal communications inevitable.
48. In terms of personal mitigation, Mr Treverton-Jones referred the Tribunal to medical

evidence that had been served as well as the character references. The First Respondent
had worked at the Firm for his entire working life. After 2012 he could not become
global chair as a result of having received the ‘yellow card’ and his career was brought
to an abrupt end in 2018. Mr Treverton-Jones described this case as an “absolute
tragedy” in an otherwise stellar career. The First Respondent’s backstory was unusual.
His father was a bus conductor and his mother a waitress. He had not been born with a
“silver spoon” – quite the opposite. He had made his career at the Firm and reached the
top. Mr Treverton-Jones reminded the Tribunal that the Third and Fourth Respondents,
Person B and Mr Strivens had all spoken highly of him.
49. Mr Treverton-Jones submitted that this had not been a deliberate breach of rules or
principles. There was no need for the public to be protected as there was no risk to it.
The First Respondent had also had to bear his own costs of these proceedings without
the assistance of insurers, as well as paying £48,000 to the Applicant in respect of its
costs. Mr Treverton-Jones invited the Tribunal to impose a modest financial penalty. If
the Tribunal was not minded to deal with the matter in this way, then
Mr Treverton-Jones invited it to impose a short period of suspension.
Sanction
50. The Tribunal had regard to the Guidance Note on Sanctions (November 2019). The
Tribunal assessed the seriousness of the misconduct by considering the First
Respondent’s culpability, the level of harm caused together with any aggravating or
mitigating factors.
51. The Tribunal carried out this analysis in respect of Allegations 1.1 and 1.2 together.
The two Allegations contained distinct types of serious professional misconduct but
both were in the context of the incident in the hotel room. It was artificial to separate
them for the purposes of sanction. The Tribunal considered that the sanction should
reflect the seriousness of the totality of the misconduct surrounding the incident.
52. In assessing culpability, the Tribunal found that the motivation for the incident itself
was sexual gratification. In the investigation that followed, the motivation was
self-preservation to the extent that the First Respondent sought to manage the way in
which Person A was dealt with.
53. The Tribunal did not find that the incident was premeditated to any significant extent.
The First Respondent had engineered the situation such that he was alone with Person A
in his hotel room but there was no evidence of planning prior to that. The emails sent
in the course of the investigation were generally examples of the First Respondent
acting impulsively in his attempts to retain his position at the Firm. The Tribunal
acknowledged that he had not been told to desist.
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54. The Tribunal had found that the First Respondent had committed a severe breach of
trust in respect of Person A by abusing his position. He had a duty of care to Person A,
who was in a very junior role in the Firm compared to him. He had completely breached
that duty. The First Respondent was a highly experienced solicitor working in a senior
leadership role at the firm. At the material time he had been leading a delegation to
show the best of the Firm and he had complete control of the circumstances that led to
his misconduct.
55. The harm caused to Person A was devastating. As a direct result of the incident in the
hotel room, her career took an entirely different path. The emotional impact on
Person A had been very clear to the Tribunal during the course of her evidence. There
was also an impact on the Second, Third and Fourth Respondents as they attempted to
grapple with the repercussions. The First Respondent was in a position of significant
seniority and responsibility and the reputation of the profession was inevitably damaged
by this misconduct by a solicitor in such a role. That damage was compounded by the
First Respondent’s approach to the investigation into his own misconduct as it related
to the way in which Person A was dealt with.
56. The misconduct was aggravated by the fact that while not calculated, the emails were
repeated and deliberate. They continued throughout the investigation. The incident
itself involved a degree of persistence, albeit over a relatively short period of time. The
brevity of the incident did not mean it was not serious. Person A was vulnerable to the
extent that she found herself alone with the First Respondent in his hotel room at 3am
as a result of his exercise of authority The First Respondent had taken advantage of
these facts and he ought to have known that his conduct was in complete breach of all
of his obligations.
57. In the course of the investigation, although he had not been told to stop sending emails,
he should have realised that they were inappropriate even without being told.
58. In considering mitigating factors, the Tribunal accepted that the events of
February-March 2012 came against the backdrop of an unblemished and successful
career. The First Respondent had shown a degree of insight and the Tribunal noted the
evidence of Mr Strivens who had stated that he had believed the First Respondent’s
apologies were genuine. However, the First Respondent had shown little insight into
his conduct concerning his role in the investigation. There had been no further similar
issues in the 8 years since the isolated incident and the subsequent training and self
reflection he had undertaken. These factors are reflected in the approach the Tribunal
took to sanction and informed its view as to the appropriate sanction to impose.
59. The Tribunal was not assisted by references to previous, non-binding, cases before the
Tribunal. The Tribunal determined that cases of this nature in particular were very fact
specific. The Tribunal was also approaching the totality of conduct which went beyond
the incident between the First Respondent and Person A. The Tribunal found that
making ‘no order’ or imposing a Reprimand was insufficient to reflect the seriousness
of the misconduct. The level of culpability and the significant harm caused meant that
these were serious matters such that the reputation of the legal profession required a
greater sanction. The Tribunal did not consider that the First Respondent posed a risk
to the public, nor that there was significant risk to colleagues and others of any repeat
of the behaviour similar to the incident in February 2012. The Tribunal concluded that
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it was unnecessary to place a restriction order on, or otherwise interfere with, the First
Respondent’s ability to practice.
60. The Tribunal determined that the seriousness of the misconduct was such that the
appropriate sanction was a financial penalty. The Tribunal considered the level of the
fine with reference to the Indicative Fine Bands. The misconduct required a significant
fine be imposed. The Tribunal determined that a Level 5 fine was appropriate as the
First Respondent’s conduct was ‘significantly serious, but not so serious as to result in
an order for suspension or strike off’ for all the reasons set out above. The Tribunal
considered all the mitigation presented by Mr Treverton-Jones, the impressive
character references and the First Respondent’s health. The appropriate sum was one at
the lower end of Level 5. The Tribunal determined that the appropriate sanction was
£55,000. This reflected the totality of the First Respondent’s misconduct.
Costs
61. The Tribunal heard submissions on costs from all parties. The submissions are
summarised below, followed by the Tribunal’s decision in respect of each Respondent.
First Respondent
62. The First Respondent and the Applicant had agreed that he would pay £48,000 towards
the Applicant’s costs. This reflected £40,000 plus VAT. The Tribunal was satisfied that
this was an appropriate contribution and made the Order in those terms.
Second Respondent
63. Mr Tabachnik applied for a contribution to the Applicant’s remaining costs from the
Second Respondent. He also opposed Ms Robertson’s application for costs.
64. In respect of his application against the Second Respondent, Mr Tabachnik submitted
that the Applicant’s costs were reasonable and noted the comparative costs claimed by
the Second, Third and Fourth Respondents.
65. Mr Tabachnik referred the Tribunal to Broomhead v SRA [2014] EWHC 2772
(Admin), in particular [41] and [42]:
“41. I would not take issue with the finding that all three charges were properly
brought. The propriety of bringing unsuccessful charges is a good reason why
the SRA should not have to bear the costs of the solicitor. The SRA is, after all,
a regulator and should not be dissuaded from carrying out its task fearlessly
because of a concern that it would have to pay costs if unsuccessful - see
Baxendale-Walker v The Law Society [2008] 1 WLR 426 at [39] (always
assuming that the charges are properly brought). 42. However, while the
propriety of bringing charges is a good reason why the SRA should not have to
pay the solicitor’s costs, it does not follow that the solicitor who has successfully
defended himself against those charges should have to pay the SRA’s costs. Of
course there may be something about the way the solicitor has conducted the
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proceedings or behaved in other ways which would justify a different

conclusion. Even if the charges were properly brought it seems to me that in the
normal case the SRA should have to shoulder its own costs where it has not
been able to persuade the Tribunal that its case is made out. I do not see that this
would constitute an unreasonable disincentive to take appropriate regulatory
action.”
66. Mr Tabachnik submitted that the question for the Tribunal was whether there was
something about the way in which the Second Respondent had conducted itself,
specifically in respect of the investigation, but also to a degree the proceedings, or that
he behaved in other ways which justified a different conclusion to the usual position
that the Applicant should shoulder its own costs where it had been unsuccessful.
Mr Tabachnik submitted that the circumstances which justified that departure in this
case was the Second Respondent’s response to the EWW letter, in which the other
Respondents were criticised by the Second Respondent.
67. The un-redacted version of the EWW response was provided to the Tribunal after
discussion among the parties. Until the discussion of costs, the Tribunal had only seen
a redacted version.
68. Mr Tabachnik submitted that the very fact that redaction had been necessary and that
even now, steps had to be taken to avoid further ventilation of matters was in itself
relevant. Mr Tabachnik told the Tribunal that it was no defence for the Second
Respondent to say that the EWW reply was sent without sight of the responses of other
Respondents. It was always open to them to have responded in a more circumspect
manner. Mr Tabachnik submitted that while the Applicant made its own decision as to
how to proceed, this was not a reasonable letter for the Second Respondent to write to
its regulator. It had necessarily influenced the way in which the Applicant had viewed
the entire matter. The Second Respondent had not carried out the thorough investigation
that it indicated it had done and it had not identified all of the relevant documentation.
69. In respect of the Second Respondent’s application for costs, Mr Tabachnik agreed that
CMA v Flynn Pharma and Others [2020] EWCA Civ 617 set out the broad scope of the
test. Mr Tabachnik submitted that in considering the meaning of the term “unreasonable
conduct”, it was important that this recognised the regulator’s margin of appreciation.
The Applicant should not be at risk of a costs order unless it has conducted itself in a
manner which was outside the bounds within which a reasonable regulator should
behave. Mr Tabachnik warned the Tribunal of the “chilling effect” of a costs order
against the profession and he noted that the Second, Third and Fourth Respondents’
costs were covered by insurance. There was therefore no financial hardship to them if
a costs order was not made in their favour.
70. Mr Tabachnik made a number of submissions that were applicable to all the
Respondents who had made an application for costs against the Applicant. They are
summarised here to avoid repetition.
71. The Allegations had been certified by the Tribunal as showing a case to answer and
there had been no strike-out applications, abuse of process submission or half-time
submissions. The Tribunal could have heard such submissions at any time as it had the
power to regulate its own procedure. The fact that the Tribunal had deliberated for two
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days was inconsistent with the notion that the Allegations were hopeless, even allowing
for time to be spent considering the First Respondent’s case. The Third Respondent
himself had not been critical about the Applicant bringing the case in his evidence and
the Second Respondent had not sought its costs of the December part of the hearing.
72. Mr Tabachnik made further reference to the Second Respondent’s response to the
EWW letter.
73. Mr Tabachnik told the Tribunal that it was not the case that the matter had not been
reviewed, quite the contrary. The matter had been reviewed and the decision had been
taken to continue.
74. Mr Tabachnik told the Tribunal that he took issue with the timing of the service of costs
schedules by the Second, Third and Fourth Respondents, some of which he submitted
were late.
75. Mr Tabachnik submitted that the Allegations had been properly brought and
maintained, having regard to “the fundamental regulatory interest raised by the case
and the specific evidence as to misjudgements made during the investigation”. The
Allegations had not been fundamentally flawed or doomed to fail. Mr Tabachnik told
the Tribunal that there was a regulatory and public interest in ensuring that allegations
of sexual harassment were taken seriously and investigated robustly. Mr Tabachnik
took the Tribunal to some factual aspects of the case in support of his submissions.
These are not repeated here as they are addressed above in other parts of this Judgment.
76. In relation to the Second Respondent specifically, Mr Tabachnik reminded the Tribunal
that the Applicant had not ignored the request for a review of the case and indeed it had
responded in writing with the outcome of its review.
77. Mr Tabachnik submitted that the Second Respondent was effectively seeking to transfer
the costs burden of the Fourth Respondent’s accident, which necessitated the
adjournment, on to the Applicant. He described this as “misguided and distasteful”.
78. Mr Tabachnik submitted that the Second Respondent, along with the other
Respondents, had “secured a very considerable tactical advantage” as a result of the
adjournment in that it had extra time to prepare its closing submissions.
79. Finally Mr Tabachnik submitted that the Second Respondent had not properly
explained what additional costs had been incurred in 2020 that would not have been
incurred if the case had concluded in 2019.
80. Ms Robertson opposed Mr Tabachnik’s application for costs and applied for the Second
Respondent’s costs incurred after 15 April 2020.
81. In relation to the Second Respondent’s application Ms Robertson referred the Tribunal
to the Court of Appeal judgment in Flynn Pharma, particularly [79] which summarised
the relevant principles:
107
“79. The applicable legal principles to be derived from these cases are, in my
judgment, as follows:
i) Where a power to make an order about costs does not include an express
general rule or default position, an important factor in the exercise of
discretion is the fact that one of the parties is a regulator exercising
functions in the public interest.
ii) That leads to the conclusion that in such cases the starting point or
default position is that no order for costs should be made against a
regulator who has brought or defended proceedings in the CAT acting
purely in its regulatory capacity.
iii) The default position may be departed from for good reason.
iv) The mere fact that the regulator has been unsuccessful is not, without
more, a good reason. I do not consider that it is necessary to find
“exceptional circumstances” as opposed to a good reason.
v) A good reason will include unreasonable conduct on the part of the

regulator, or substantial financial hardship likely to be suffered by the
successful party if a costs order is not made.
vi) There may be additional factors, specific to a particular case, which

might also permit a departure from the starting point.”
82. Ms Robertson submitted that to depart from the position that costs would not usually
be ordered against a regulator, a “good reason” was required and not “exceptional
circumstances”. A “good reason” could include unreasonable conduct on the part of the
regulator.
83. Ms Robertson told the Tribunal that it was not her case that the Applicant acted
unreasonably in issuing the proceedings. However, there were some aspects of the Rule
5 statement which were unsustainable and should have been recognised as such from
the outset.
84. In addition, the Applicant had continued with the case against the Second Respondent
after it was clear it should have been discontinued. The Second Respondent had written
to the Applicant on 31 March 2020 stating that if the Applicant withdrew by
14 April 2020 then the Second Respondent would not seek costs against it but warning
that, if it continued, then the Second Respondent would seek costs from 15 April 2020
onwards. The Applicant had rejected this offer for reasons which Ms Robertson
submitted, did not bear scrutiny. Ms Robertson took the Tribunal through this
correspondence as part of her submissions. Ms Robertson submitted that by the end of
the December hearing it ought to have been clearer to the Applicant that the thrust of
its case had fallen away in light of the evidence that had been heard by that point.
Ms Robertson cited a number of examples where she submitted this was the case. The
costs had increased as a result of the adjournment and the Applicant had an opportunity
during that period to reflect on its case, in accordance with its duties.
108
85. Ms Robertson told the Tribunal that a half-time submission could not have been made
after the December hearing as the evidence was continuing and it was not the Second
Respondent’s case that the Allegations against it should never have been brought, rather
that the Applicant ought to have discontinued having heard the explanations.
86. In relation to Mr Tabachnik’s application, Ms Robertson described this as “optimistic”

and invited the Tribunal to refuse it. Ms Robertson submitted that the starting point was
that where a regulator had been unsuccessful then it should bear its own costs. The
starting point could be displaced if the regulated person’s conduct was such as to bring
the prosecution on itself. Ms Robertson submitted that this had not happened in this
case. The Second Respondent had co-operated extensively with the SRA. As to
documents that were disclosed later in the proceedings, Ms Robertson submitted that
this was due to no more than misunderstandings on the part of the legal team and
entirely understandable in the circumstances.
The Tribunal’s Decision
87. The Tribunal listened carefully to the lengthy and detailed submissions of the
Applicant, Second, Third and Fourth Respondents, including the points dealt with in
reply, which amplified the points already made.
88. In considering each of the applications, the Tribunal had regard to Flynn and to
Broomhead.
89. The Tribunal considered the Second Respondent’s application for costs against the
Applicant.
90. The Tribunal concluded that to retrospectively review evidence at a snapshot in time
during the course of the case, in this case at some point between December 2019 and
April 2020, would be an artificial exercise and would not be a proper use of Tribunal
time.
91. The decisions about how to proceed, what Allegations to bring and whether to maintain
them were matters for the Applicant, exercising its discretion. It was rare that the
Tribunal would involve itself in that discretion. Examples of instances where it would
be involved would be confined to when it heard submissions or abuse of process,
applications to strike-out or half-time submissions. In respect of the Second Respondent
the Tribunal had heard and seen evidence confirming that the Applicant had, quite
properly, continued to review the matter as late as May 2020 and following that review
exercised its discretion by deciding to proceed.
92. There was no evidence of unreasonable conduct on the part of the Applicant in
proceeding with the case against the Second Respondent.
93. The Tribunal had considered the case against the Second Respondent by reviewing the
totality of all the evidence in the case, including that of the Fourth Respondent who did
not give his evidence until the resumption of the hearing in April 2020.
109
94. The Tribunal firmly rejected the submission made by Mr Tabachnik that any
Respondent had gained a tactical advantage from the adjournment. The Tribunal
assessed all the evidence to the same standard and in the same way regardless of the
adjournment. The Tribunal considered all the submissions made, but its acceptance of
rejection of them did not depend on their length but on the points contained therein with
reference to the evidence. The Tribunal was entirely satisfied that no party gained an
advantage or suffered prejudice as a result of the adjournment.
95. The Tribunal saw no basis to depart from the starting point which was that the Second
Respondent should bear its own costs. The Second Respondent’s application for its
costs from 15 April 2020 onwards was refused.
96. In relation to the application for costs by the Applicant against the Second Respondent,
the principal basis of this was the Second Respondent’s response to the EWW letter. It
was right to say that the Second Respondent’s position had changed significantly since
that letter was written. However, the Applicant could not absolve itself of responsibility
for its formulation of Allegations on the basis of a letter from a firm that, in the opinion
of the Applicant, was guilty of professional misconduct. Mr Tabachnik had made the
point that the Applicant had reviewed its case throughout the proceedings. It was
therefore aware of the Second Respondent’s revised position during those reviews and
could not convincingly argue that the EWW response was relevant, certainly once the
revised position was known.
97. The Tribunal therefore saw no reason to depart from the starting point that the
unsuccessful regulator should bear its own costs and Mr Tabachnik’s application for
some of the Applicants’ costs from the Second Respondent was refused.
Third Respondent
98. Mr Tabachnik did not seek any costs against the Third Respondent. He opposed
Mr Coleman’s application for costs.
99. In addition to the general submissions set out above, in relation to the Third Respondent
specifically Mr Tabachnik submitted that the alleged factual errors in the Rule 5, such
as they were errors rather than differences of interpretation, were not such as to justify
a conclusion that the case was not properly brought.
100. Mr Tabachnik denied that the case had been over-prosecuted in relation to Allegations
3.1 and 3.3.
101. The withdrawal of Allegation 3.2 was an example of the Applicant complying with its
duty to review matters and, where appropriate, withdraw them in light of new
information. Mr Tabachnik did not accept that this had been the most serious of the
Allegations, submitting that Allegation 3.1 was more serious. In any event,
Mr Tabachnik submitted that the costs relating purely to Allegation 3.2 were ‘de
minimis’.
110
102. Mr Tabachnik again submitted that the costs application of work done since December
was an attempt to make the Applicant pay for the delays caused by the Fourth
Respondent’s accident in circumstances where he submitted the Third Respondent had
gained a tactical advantage from that delay.
103. Mr Coleman applied for the totality of the Third Respondent’s costs, to be subject to
detailed assessment. He submitted that there were good reasons why the Broomhead
starting point should be displaced.
104. Firstly, Allegation 3.2, which had been withdrawn, had not been properly brought. It
depended on evidence from Person A that she was misled, and it had transpired the
Applicant never had that evidence. This had been the most serious Allegation faced by
the Third Respondent, causing him considerable distress. The Applicant’s reasons for
discontinuing had been inconsistent and wrong. Mr Coleman submitted that the
Applicant had acted unreasonably in bringing Allegation 3.2 as it was never justified.
105. Secondly, Allegations 3.1 and 3.3 had been over-prosecuted. It had been accepted from
the outset that the Third Respondent had acted in good faith and it was therefore never
a case in which a breach of Principles 3 or 6 were realistic. It was at most a Principle 8
case. Allegation 3.3, as pleaded, did not involve any serious misconduct warranting
referral to the Tribunal. The alleged breach had not been deliberate and on the
Tribunal’s findings the Applicant had misunderstood the meaning and effect of the
Outcome.
106. Thirdly, Mr Coleman submitted that the Rule 5 statement was “replete with obvious
errors”. Mr Coleman referred the Tribunal to examples of such errors, which he
submitted ought to have been corrected by the Applicant but which had not been.
107. Mr Coleman submitted that after the matter was adjourned in December, the Applicant
ought to have appreciated that the case against the Third Respondent, like the Second
Respondent, was very likely to fail if not bound to fail.
108. Mr Coleman submitted that the case against the Fourth Respondent had also not been
properly brought and told the Tribunal that the hearing could have been concluded in
December had the Fourth Respondent not been part of the proceedings.
109. Mr Coleman also referred the Tribunal to Flynn in support of his submissions. He
agreed with Ms Robertson’s submissions about the duty on the Applicant to
continuously review the case right to the end. Mr Coleman submitted that the Tribunal
would not have had jurisdiction to entertain a submission of no case to answer at the
conclusion of the December part of the hearing as the case was into the evidence of the
Respondents.
110. The Third Respondent had taken no issue with the propriety of the proceedings until
after the Tribunal had announced its findings. On more than one occasion the Third
Respondent had specifically stated that he did not criticise the way in which the
111
Applicant had brought proceedings. This was consistent with the fact that the Third
Respondent had not applied for any part of the case to be struck out for lack of evidence
in advance of the hearing or for abuse of process. The Third Respondent had not made
a submission of no case to answer at the conclusion of the Applicant’s case.
111. The Applicant had plainly not acted unreasonably in bringing or continuing with the
case against the Third Respondent. It had, quite properly, reviewed its case and had
applied to withdraw Allegation 3.2. The Tribunal had not found the remaining
Allegations proved to the requisite standard but it had found errors of judgement on his
part. At no time had the Tribunal questioned why the Allegations had been brought – it
was clear from the evidence that there was a case to answer. The case had not been
over-prosecuted and the fact that the Allegations against the Fourth Respondent had not
been proved did not entitle the Third Respondent to costs against the Applicant given
the circumstances of the adjournment.
112. The Tribunal saw no basis to depart from the starting point that the Third Respondent
should bear his own costs and it refused the application for costs against the Applicant.
Fourth Respondent
113. Mr Tabachnik did not seek any costs against the Fourth Respondent. He opposed
Mr Laidlaw’s application for costs.
114. In addition to the submissions he had already made, Mr Tabachnik submitted that it
was not necessary for the Applicant to have called expert evidence as to HR matters.
115. Mr Laidlaw applied for the totality of the Fourth Respondent’s costs. Mr Laidlaw
submitted that the case against the Fourth Respondent had been prosecuted without any
proper evidential basis.
116. The Applicant had ignored the fact that the Fourth Respondent had no part to play in
the decision-making at any point and that the conduct of the investigation was handed
over to the Third Respondent within 48 hours. The criticisms of the Fourth
Respondent’s part in the investigation were not supported by any examination of
contemporaneous human resource standards.
117. Mr Laidlaw submitted firstly that the Tribunal’s findings amounted to “a complete
vindication” of the Fourth Respondent’s position, one he had set out as far back as
January 2019 in his response to the EWW letter.
118. Mr Laidlaw’s second submission, was that the Second Respondent’s response to the
EWW letter should never have been adopted by the SRA. When the further emails had
come to light in October-November 2019, they were entirely supportive of the Fourth
Respondent’s long held position. In any event, when the Second Respondent began to
retreat from the EWW response, this was a further opportunity for the Applicant to
review its position against the Fourth Respondent.
112
119. Mr Laidlaw’s third submission was to question how the Applicant could have criticised
the Fourth Respondent without seeking expert opinion in the area of HR. If it had done
so it would have realised that it had no case. The solicitors for the Fourth Respondent
had written to the Applicant appealing to it to review its decisions in November 2019
and 2-3 weeks before the conclusion of the proceedings.
120. Mr Laidlaw submitted that for these reasons the case was improperly brought and
improperly pursued against the Fourth Respondent. Insofar as the Second and Third
Respondents had made points that were beneficial to the Fourth Respondent, these were
adopted but not repeated.
121. The Fourth Respondent, in common with the Third Respondent, had also not made any
submission of abuse of process, of no case to answer and he had also not applied for
the matter to be struck-out for lack of evidence. This was inconsistent with now arguing
that the entirety of the proceedings had been improperly brought and improperly
pursued. The Applicant had, again, reviewed its case and applied to withdraw
Allegation 4.2.
122. The submission to the effect that the Applicant should have sought expert evidence as
to HR matters and that had it done so it would not have continued with the case against
the Fourth Respondent was entirely speculative.
123. The Tribunal had indeed found that the Fourth Respondent was not a decision-maker
and had reached that conclusion on the overwhelming weight of the evidence. It had
not found that this was an end of the matter and it had concluded that the Fourth
Respondent had made mistakes and misjudgements. The Tribunal had not been satisfied
that those failings amounted to professional misconduct but that did not mean that the
Allegations had been improperly brought – they had not.
124. The Tribunal therefore did not find any basis to depart from the starting point and
refused the Fourth Respondent’s application for costs.
Statement of Full Order
125. The Tribunal Ordered that the First Respondent, GARY SENIOR, solicitor, do pay a
fine of £55,000.00, such penalty to be forfeit to Her Majesty the Queen, and it further
Ordered that he do pay the costs of and incidental to this application and enquiry fixed
in the sum of £48,000.00.
126. The Tribunal found the Allegations against the Second Respondent,
BAKER MCKENZIE LLP of 100 New Bridge Street, London, EC4V 6JA Not Proved
and made no Order as to costs.
127. The Tribunal found the Allegations against the Third Respondent,
THOMAS KENNEDY CASSELS Not Proved and it made no Order as to costs.
128. The Tribunal found the Allegations against the Fourth Respondent,
MARTIN BLACKBURN Not Proved and it made no Order as to costs.
113
Dated this 1st day of September 2020

On behalf of the Tribunal
J Martineau
Chair
JUDGMENT FILED WITH THE LAW SOCIETY

01 SEPT 2020

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SOLICITORS DISCIPLINARY TRIBUNAL

IN THE MATTER OF THE SOLICITORS ACT 1974 Case No. 11976-2019

SOLICITORS REGULATION AUTHORITY Applicant

GARY SENIOR First Respondent

Mrs J Martineau (in the chair)

1. Persons A, B, C and T (as referred to in the Rule 5 Statement) shall be anonymised

2. The publication in connection with these proceedings by any Person of Person A,

Second Respondent (“the Firm”)

2. The Allegations were that the Second Respondent:

2.1 Caused or allowed an investigation to be conducted into a complaint by Person A as to

2.1.3 Failed to cause the complaint to be effectively or independently investigated;

2.2.3 The First Respondent’s conduct was aggravated by his seniority;

2.2.4 The First Respondent’s conduct had caused harm to Person A;

3.1.3 Failed to cause the complaint to be effectively or independently investigated;

3.3.3 The First Respondent’s conduct was aggravated by his seniority;

3.3.4 The First Respondent’s conduct had caused harm to Person A;

4.1. Conducted or caused or allowed to be conducted, an investigation into a complaint by

4.1.3 Failed to cause the complaint to be effectively or independently investigated;

4.3.3 The First Respondent’s conduct was aggravated by his seniority;

4.3.4 The First Respondent’s conduct had caused harm to Person A;

4.3.5 The First Respondent should be issued with a written warning;

6. Application for Fourth Respondent to give more detailed evidence-in-chief

6.3 The Tribunal considered the submissions of the parties.

7. Applications by the Applicant for leave to make a closing submission

8. The attendance at the hearing of the Fourth Respondent

9. Direction that the resumed hearing take place remotely

10. Application to withdraw Allegations 3.2 and 4.2

 Person A was an associate at the Firm.

DATE TIMELINE EVENT

DATE TIMELINE EVENT

01.03.2012 Meeting at Starbucks attended by Person A, Person B, the Fourth Respondent

01.03.2012 Meeting between First, Third and Fourth Respondents

06.03.2012 Meeting to discuss the LLP’s proposed outcome, attended by Mancom

15.03.2012 EL gives approval for the proposed course of action.

19.03.2012 Meeting attended by Person A, Person B, Third Respondent, Fourth

28.03.2012 First Respondent is sent a warning letter by Third Respondent.

16.04.2012 Settlement agreement signed with Person A.

May/June 2013 First Respondent selected to join the Executive Committee

30.06.2013 First Respondent’s term as Managing Partner comes to an end.

2016 Matter further investigated by the Firm.

16. The incident in the hotel room (Allegation 1.1)

17. Immediately after the incident

18. Person A’s complaint

outcomes of a grievance, and, in particular, the options of pursuing matters formally or

19. The Investigation

20. Table Of Key Emails

Date Time Sender Recipient(s) Content summary

Date Time Sender Recipient(s) Content summary

1. Please could you provide me with a copy of the

2. You also mentioned an informal resolution

3. Thank you for letting me know the outcome of

As I have said above, I am still considering position

1. Please find the grievance and disciplinary policies

Date Time Sender Recipient(s) Content summary

3. Your pay will not be affected by your current

Of course if you have any other questions please do not

Date Time Sender Recipient(s) Content summary

I have asked her to reconsider saying that there are

Date Time Sender Recipient(s) Content summary

Going forward I suggest you treat Tom as your internal

For the record Martin, I am extremely impressed with

I also wanted you to know that I’m obviously trying to

I will obviously speak to Tom re: the meeting with