Much of the Solicitors Disciplinary Tribunal case involving Oliver Bretherton has been extraordinary. Lurid details of intimate messages and videos being sent to a teenage colleague, the 16-day hearing stretched out from February to June, even the Solicitors Regulation Authority being ordered to pay £15,000 in wasted costs for multiple disclosure failings in the build-up to the prosecution.
But Bretherton – whose 16-year career as a solicitor was ended by the tribunal this week – will also be held up as a landmark case. It is the first time a strike-off has been ordered for non-criminal acts of sexual misconduct in the workplace.
The tribunal’s reasoning has yet to be published (and Bretherton can appeal) but it is likely that the nature of his misconduct – three complainants, 70 allegations proved in total; the almost 20-year age difference between Bretherton and his youngest complainant, together with his seniority as a director of international firm Gowling WLG – all contributed to the sanction.
But the ban was always on the cards. It is known that regulators have been uncomfortable with financial penalties, rather than suspensions or strike-offs, for sexual misconduct. One solicitor was fined £10,000 in 2020 after drunkenly touching a paralegal in front of colleagues, while another veteran practitioner received a £30,000 fine in the same year for touching the bottom of a junior colleague 18 times over four years.
Revised guidance from the SRA, accompanying its new fining powers, stated last month that behaviours relating to sexual misconduct were ‘unsuitable’ for a financial penalty, other than in exceptional circumstances. The regulator revealed this week that it has 90 ongoing cases involving alleged sexual misconduct.
Andrea Cohen, risk and compliance solicitor with national firm Weightmans, said it is possible that more solicitors will face suspensions or strike-offs in future. ‘With the SRA having made clear that allegations of sexual misconduct will be referred to the SDT, the Bretherton case will not only act as a benchmark against which all future cases will be measured but it also sends a clear message that the ultimate sanction of being banned from the profession in the most serious of cases remains open to the SDT.’
Experts are careful to stress that the facts of the Bretherton case are unlikely to be repeated, and that sexual liaisons between staff members are not, as some might suggest, always going to be the business of the SRA.
There has been a misconception since the High Court overturned the tribunal’s finding of misconduct against Ryan Beckwith in 2020 that the SRA was thereafter bound to keep its nose out of solicitors’ (literal) affairs.
The regulator does not see it like that. Instead, the judge’s findings were viewed as an indication that an alleged abuse of power between consenting senior and junior staff was very much the SRA’s business. Bretherton appears to have been an example of the regulator honing in on that element.
Gregory Treverton-Jones KC, long-time co-author of The Solicitor’s Handbook and regular advocate at the SDT, said: ‘The two dangers that lurk for solicitors engaging in sexual conduct with others within the firm are firstly lack of consent and secondly abuse of power. Where there is no consent, the solicitor is likely to be guilty of harassment or worse, and therefore likely to have committed professional misconduct. Where there is a clear abuse of power, the solicitor may be held to have taken unfair advantage of the colleague.’
Bretherton was also unusual in that the SRA was so keen to make submissions on sanction and there is a growing appetite for the SRA to want to be heard. It does not have the right to be heard on sanction, but it is able to make the application for permission to be heard which may either be granted or refused by the panel at its discretion. The tribunal is working with the SRA to develop an agreed approach to ensure consistency.
Andrew Pavlovic, a partner with London firm CM Murray specialising in SRA professional discipline and regulatory investigations, said that penalties for sexual misconduct were increasing in general. However, he stressed that the tribunal will still impose a high threshold before it strikes off solicitors. ‘The tribunal’s position, as reflected in its own sanctions guidance, is that a strike-off is appropriate where the seriousness of the misconduct is at the highest level, and the protection of the public and/or the protection of the reputation of the legal profession requires it,’ he said.
‘Accordingly, while we can expect larger fines and potentially more suspensions, strike-offs for sexual misconduct are likely to remain the exception rather than the norm.’
