Plea comes as SDT fines lawyer £8,500 for failing to disclose relationship
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A disciplinary tribunal has urged the Solicitors Regulation Authority (SRA) to review the guidance it gives to members of the profession who enter into sexual relationships with clients.
The news comes after a family solicitor was slapped with an £8,500 fine by the Solicitors Disciplinary Tribunal for having “fully intimate” relations with a woman he was representing in a child contact case.
Richard Harbord — who was admitted in 2002 and practises at his own Surrey law firm, Harbord & Co — called the regulator’s ethics helpline twice for advice. On both occasions he was told that there was no issue provided he could still offer independent and impartial advice to his client (Mrs N).
This SRA guidance was described as “at best opaque” by the tribunal. The three-person panel concluded that “clear and unequivocal advice” from the SRA may have prevented Harbord from “falling into error.”
So what exactly happened between Harbord and his client?
Well Harbord, now 59, began acting for Mrs N in September 2014 in a bitter family law case regarding her children’s contact with their father (Mr N). In November, Harbord and Mrs N began a non-intimate relationship which saw the pair holiday to Barcelona and spend Christmas together.
In February 2015, there was a hearing to determine how much Mr N had to pay Mrs N for legal costs. Harbord did not disclose the relationship to the court at this time.
Fast forward a month and Harbord’s relationship with Mrs N had become intimate. Having discovered that something might be going on, Mr N’s solicitors wrote to Harbord in March asking a number of probing questions about the relationship. Mr Harbord responded but did not address all their queries, according to the judgment.
During a hearing in June the relationship was finally disclosed to the court. Harbord’s actions were criticised by the presiding judge, who said: “the solicitor is in a situation where he cannot give independent professional advice to the mother.” Given these concerns about a possible conflict of interest, Harbord was directed to send the judgment to the SRA, which he did. In July 2015 Mrs N instructed a different firm of solicitors.
Divorcee Harbord maintained that there was no conflict of interest and was still able to provide independent advice. However, he did accept that he had not informed Mr N’s solicitors of the nature of the relationship when asked.
Ruling, the SDT said that Harbord did not need to disclose the non-intimate relationship at the February 2015 hearing. However, the tribunal stressed that once relations had become “fully intimate” there had become a “clear risk of his interests being in conflict with those of Mrs N.” Harbord, who now lives with Mrs N, was fined £8,500 and ordered to pay costs of £9,500.
This case may open the doors to a regulatory rethink on SRA guidance. The SDT referred to advice issued in 2015 by a national organisation of family lawyers called Resolution. The group — of which Harbord was member — suggested that family practitioners should not have sexual relationships with their clients. If one should develop during the case, the lawyer should cease to act on their behalf.
The tribunal said it had been “informed that the position for solicitors had originally reflected this [Resolution’s] advice but had changed in the 1950s.” It continued:
Whilst a matter for the [SRA] and irrelevant to sanction, the tribunal did consider that at the next appropriate opportunity, the [SRA] may wish to consider whether or not the advice it provides requires revision, particularly in respect of family matters.
UPDATE: 04/09/17 at 15:30pm
An SRA spokesperson has now told Legal Cheek:
“When it comes to personal relationships with clients every case is different. A solicitor needs to consider the circumstances and use their professional judgement. When giving advice, we are clear that a solicitor should carefully consider the handbook principles, in particular making sure they are acting independently, with integrity and in the best interest of the client. They also need to consider whether their actions could undermine public trust in the profession. Giving the sensitivities involved, we would also advise a solicitor to think particularly carefully in family law cases.”
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