UK: Changing Standards – The Standard Of Proof In Lawyers' Disciplinary Proceedings

Last Updated: 18 December 2017
Article by Sarah Clover and Lisa Jones

Most Read Contributor in UK, December 2017

The Bar Standards Board (BSB) announced on 24 November that it has decided to change the standard of proof applied when barristers, and others regulated by the BSB, face disciplinary proceedings for professional misconduct. Subject to approval from the Legal Services Board (LSB), the standard of proof will change from the criminal standard ("beyond reasonable doubt") to the civil standard ("on the balance of probabilities").

The BSB proposes to apply the civil standard to alleged breaches of its code occurring after 31 March 2019, in order to allow a period of preparation. The announcement follows the BSB's consultation on the issue over the Summer (see BSB Consultation on Standard of Proof in Lawyers' Disciplinary Proceedings).

The appropriate standard of proof in lawyers' disciplinary proceedings has been a source of debate for some time, with the discussion intensifying last year following the judgment of The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin) (known as the 'Arslan judgment'). The question will now be whether the Solicitors Disciplinary Tribunal (SDT), will make the same change.

Background to the BSB Decision

To date both the Bar Tribunals and Adjudication Service (BTAS) and the SDT have applied the criminal standard of proof in disciplinary proceedings. Towards the end of last year, Mr Justice Leggatt, in obiter comments in the Arslan judgment, expressed sympathy for the view that it is unsatisfactory and illogical for the SDT, acting as primary fact finder, to apply a different standard of proof from the SRA when carrying out a similar fact finding role. Further, he described the authorities in support of the current approach as 'ripe for reconsideration' (see Standards of Discipline: Judicial Comment on the Standard of Proof in SDT proceedings).

Following the Arslan Judgment, the BSB revisited the question of whether it should change its approach. The consultation received 101 responses, the majority of them opposing a change. The Bar Council and the Commercial Bar Association indicated that their members were evenly split as to whether there should be a change, and the Inns were also divided. The BSB announcement will not therefore be met with universal approval by the profession.

The BSB has stated that the change is an important step forward in modernising the regulation of the Bar in the public interest, and its view is that this, along with the new disciplinary tribunal regulations, should give confidence to the public and barristers that the BSB's arrangements are robust, thorough and fair to all concerned.

Position of the SDT

It has always been the view of the Solicitors Regulation Authority (SRA) that both the SDT and BSB should lower the standard of proof to the civil standard, the standard also used by the SRA. This was the position argued by the SRA in the Arslan judgment.

The SDT indicated in July 2017 (in response to the BSB consultation) that it will, as part of the exercise of bringing forward its proposed new rules, be consulting on the appropriate standard of proof that should be applied in deliberations.

The SDT is governed by the Solicitors (Disciplinary Proceedings) Rules 2007, which do not specify a standard of proof. Without any specific written requirement (unlike the BSB) the SDT is reliant on case law for its source of authority as to the appropriate standard of proof to apply. Until the Arslan Judgment, the main case authorities, (Re a Solicitor [1993] QB 69 and Campbell v Hamlet [2005] UKPC 19) upon which the SDT relies, provided that the correct standard in disciplinary proceedings concerning the legal profession is the criminal standard.

Like the Bar, the solicitors profession is also divided on the appropriate standard of proof. The SRA's view is that if both the SDT and BSB utilise the civil standard, this would put the interests of the public first, rather than the individual members of the profession, give the public confidence in the regulatory system and deliver a consistent, fair and more efficient disciplinary process.

To support its position, the SRA has referred to the fact that the civil standard is used widely by other regulators including: all health professions regulators, the Accountancy and Actuarial Discipline Board and the Royal Institution of Chartered Surveyors. This discrepancy is also highlighted by the BSB in its consultation paper.

It could be argued however that the lower standard of proof applied by the SRA in its dealings with disciplinary matters reflects its more limited disciplinary sanctions. For instance, the SDT and SRA can both impose fines but the SDT can impose higher fines and while the SRA can restrict the scope of a solicitor's ability to practice, the SDT can suspend or strike a solicitor from the Roll.

On 16 October 2017, the Law Society published its own discussion paper (before the BSB announcement) and sought members' views ahead of the SDT's own consultation. Its view is that the SDT should continue to apply the criminal standard of proof as this is the position reflected in the case law and because it is the most appropriate standard when a solicitor's livelihood is at risk. It argues for an evidence based approach and states that it 'has yet to see any evidence that the current system is problematic in practice. Evidence should be gathered and analysed carefully before a decision is made and there should be a thorough impact assessment'.

The Law Society acknowledges the counter arguments, namely that it would be easier and cheaper for the SDT to prosecute cases using the civil standard; the criminal standard affords greater protection for solicitors than clients; and that most other sectors use the civil standard. However, the Law Society says that the arguments for change do not accord with the evidence. Furthermore it does not consider relevant the standard that other regulators apply, rather that 'any decisions that are made [to change the standard] should be evidence-based and appropriate to the solicitors' profession'.

The American Approach

The Law Society sets out what it considers to be a third possible option, that adopted by the American Bar Association (ABA). ABA disciplinary proceedings use a standard of proof of 'clear and convincing evidence' which is described in the commentary to Rule 18 of the ABA Model Rules for Lawyer Disciplinary Enforcement as a 'higher than "preponderance of the weight of credible evidence" which is usually deemed sufficient in civil proceedings, yet not as stringent as "beyond a reasonable doubt" required in criminal cases'.

The difficulty with this approach is that there is existing case law on the civil and criminal standard of proof, and therefore parties are clear what they mean. Introducing a new standard would bring uncertainty, at least in the short-term, until there is indication from the SDT and case-law indicating how this standard should be applied.

The Way Ahead

Now that the standard of proof used in barristers' disciplinary proceedings will change (subject to LSB approval), this will leave the SDT as the only legal services regulator to maintain the criminal standard and it would be one of only two professional regulators not utilising the civil standard, along with the Royal College of Veterinary Surgeons.

However, there remains a significant body of opinion within the profession that the serious nature of the allegations before the SDT, and the far reaching consequences for the individual solicitor if misconduct is found proven, justifies the status quo.

With the SDT issuing increasing penalties in recent months, and the SDT reportedly forecasting an increase in cases in light of the recent change to the test for dishonesty (see Ivey v Genting Casinos) the decision may have wider consequences for solicitors than ever before.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions