Lawyer Monthly Magazine - February 2019 Edition

FEB 2019 24 Special Feature www. lawyer-monthly .com Alleged Sexual Misconduct A Practical Approach to Managing Risk for Law Firms in the Post #MeToo Era The continuing risk to law firms, in the wake of the #MeToo movement and the increased reporting of alleged sexual misconduct by partners, is all too apparent from recent press headlines. BETTINA BENDER Bettina provides contentious partnership and employment law advice to professional service firms, with a particular focus on advising law firms. She also advises individual partners and LLPmembers. Bettina has extensive experience in advising on discrimination and whistleblowing complaints and misconduct investigations, restrictive covenants and team moves and negotiating partner exits both in the legal and financial services sectors. There are two key issues for firms to consider here: 1. What is the best practice approach to take when facing an allegation of sexual misconduct against a partner or LLP member (for the purposes of this article we use the term partner to refer to both); and 2. What can and should a law firm do to manage the risk of potential future complaints of sexual harassment/misconduct against partners? I. Facing an allegation of sexual misconduct Preliminary Issues Once the initial allegations have been identified, the firm should follow certain preliminary steps including reviewing the LLP agreement and any relevant partner policies, as well as the firm’s staff handbook to identify all relevant provisions concerning misconduct. This documentation will provide guidance on the investigation process to be followed, including possible suspension of the accused. Consideration shouldbegivenas to who should be the appointed investigator. Options may include identifying an internal investigator (an independent, respected senior or ex-senior law firm partner) or an external specialist investigator. In sexual misconduct cases an external investigator may be able to offer greater expertise of the process to be followed, which may be particularly useful where the alleged harassment or sexual misconduct is serious and the circumstances more complex. If the allegations may give rise to criminal liability or if the police are already involved, the firmwill need to coordinate steps with the authorities. However, in the majority of cases, the internal process should be viewed as a separate process and should be progressed as far as possible in line with internal policies. The SRA are taking an increasingly active role in sexual misconduct cases and thought will have to be given as to whether, and at which point in the process, the SRA need to be notified of the allegations. The SRA has identified inconsistency in law firms’ knowledge about when potentially serious concerns about misconduct should be reported. It has completed a consultation on the issue and will incorporate relevant changes into its new code of conduct for law firms in early 2019. According to press reports the SRA also plans to increase the number of sexual misconduct cases it prosecutes before the independent Solicitors Disciplinary Tribunal, which hears misconduct cases, and which can issue unlimited fines or strike off lawyers. Another key issue is to ensure that the appropriate level of confidentiality and data privacy concerning the various parties should be maintained throughout. Consideration should also be given to the support being offered to the alleged victim by way of confidential counselling, or support via any available medical insurance provider. Bettina Bender, Partner, Winckworth Sherwood LLP www.wslaw.co.uk