Smoke, fire, and fairness

The Bar Standards Board first considered moving to the civil standard of proof in disciplinary proceedings in 2011. The internal consensus that emerged at the time was generally favourable but the BSB’s board was reluctant to go ahead unless the Solicitors Disciplinary Tribunal moved in the same direction.

Six years on, the BSB looks set to proceed despite the SDT positively standing by its position to retain the criminal standard. There will be a lot of hand rubbing at the SRA, which has been pressing for change and whose chief executive, Paul Philip, believes they are pushing an open door. It won’t be long now, surely, before the SDT bows to pressure. But should it?

From a public interest perspective, there are good reasons to lower the standard of proof to the civil one. The obvious one is that it helps reinforce the impression that consumers are better protected from rogue lawyers. Whether higher levels of protection would be achieved in practice is far from clear.

The number of solicitors referred to the SDT is low – 116 on average in the past three years, according to the tribunal's latest annual report. Of these, just over half (60 on average) were struck off. Although strike-off numbers went up to 64 per cent last year from 45 per cent in the previous two years, these are statistically low numbers.

It makes it difficult to identify certain trends. Combined with the number of fines and suspensions, what this suggests is that the SRA is only taking cases to the SDT where it has assembled compelling evidence of misconduct and is certain to win. A move to the civil standard is unlikely to change that, as the SDT could continue to demand particularly cogent evidence before ordering strike off.

The underlying premise points to a more significant inconsistency. Both the BSB’s professional conduct committee and the SRA assess cases on the balance of probabilities.

For the SRA, this means that it can impose a fine of up to £2,000 on a law firm or solicitor based on the civil standard. When referring cases to their respective tribunals, however, the regulators need to be satisfied that allegations will be upheld based on the standard applied in the tribunal – that is, the criminal standard.

There is a further discrepancy: between traditional firms and ABSs. The SRA can fine ABSs up to £250m and those in them £50m without sending the case to the SDT. Either way, there ought to be a joined-up approach in this respect.

From a solicitor’s point of view, however, the civil standard would significantly lower the level of protection. Like defendants facing jail in criminal proceedings, solicitors facing the prospect of a career-ending decision should

be entitled to the highest protection possible. Striking off a solicitor who has been dishonest on the balance of probabilities is like saying there is no smoke without fire. This is not a suitable benchmark for a regulatory tribunal.

Any change to the standard of proof would have to come with greater flexibility and ensure that fairness remains at the heart of the process. One option would be to introduce a sliding scale requiring evidence to be more persuasive as the allegations are serious. It would also make sense for the SRA to drive more defendants towards negotiated settlements. And how about setting up a mediation unit within the SRA?

One issue must also be addressed. Too many of the cases ending up at the SDT appear to involve mental health issues. By that stage, the damage has been done and the tribunal tends to merely take note of them in passing. As we approach mental health awareness week, the issue should be at the top of the regulators’ agenda.

Jean-Yves Gilg is editor in chief at Solicitors Journal

@jeanyvesgilg

jean-yves.gilg@solicitorsjournal.co.uk