UK: SDT Consultation On Standard Of Proof In Lawyers' Disciplinary Proceedings

Last Updated: 15 August 2018
Article by Sarah Clover, Fergal Cathie and Catrin Machado

Most Read Contributor in UK, November 2018

The Solicitors Disciplinary Tribunal (SDT) has recently issued its anticipated consultation (available here) on whether the standard of proof that it applies to disciplinary proceedings should continue to be the criminal standard ("beyond reasonable doubt"), or should be amended to the civil standard ("on the balance of probabilities").

Background

This consultation follows:

  • a Legal Services Board paper released in March 2014, in which it recommended that the civil standard of proof be applied across all legal professions;
  • the case of The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862, in which the Court suggested that the standard of proof applied by the SDT needs to be reconsidered article here); and
  • the announcement made by the Bar Standards Board (BSB) on 24 November 2017 of its decision to change the standard of proof applied when barristers, and others regulated by the BSB, face disciplinary proceedings for professional misconduct, from the criminal standard to the civil standard see article here). The BSB will be applying the civil standard of proof from 1 April 2019.

The current standard of proof

The current standard of proof used by the SDT in disciplinary proceedings is the criminal standard, meaning in practice that the Solicitors Regulation Authority (SRA) - as prosecutor - must prove the facts upon which it relies beyond reasonable doubt before a disciplinary finding is made by the SDT against a law firm or member of the profession. This is different to the standard of proof that the SRA applies when investigating professional conduct cases and, following the change by the BSB, makes the SDT an outlier among legal regulators. (Indeed, the Royal College of Veterinary Surgeons will now be the only other professional regulator in England and Wales applying the criminal standard when deciding on professional misconduct cases.)

In anticipation of this SDT consultation, the Law Society published a discussion paper for comment in October 2017, and expressed the view that the SDT should continue to apply the criminal standard, as that is the position reflected in the case law and because it is the most appropriate standard when a solicitor's livelihood is at risk. Some respondents to the paper pointed out that the SDT's conviction rate is sufficiently high and there is little evidence to suggest that the application of the criminal standard of proof has stood in the way of achieving fair outcomes.

On the other hand, the SRA believes that the SDT's standard of proof should be brought in to line with the standard the SRA itself applies, thus - it argues - putting the interests of the public first by giving it confidence in the regulatory system to deliver consistent and fair disciplinary outcomes. The consultation paper notes that it may not be in the public interest for solicitors to avoid the sanction of the SDT when it is more likely than not that the conduct in question has taken place but there is still room for reasonable doubt. The SDT also recognises that maintaining the criminal standard of proof may be perceived by the public as protecting the interests of the profession as opposed to the interests of the public.

Other arguments put forward in favour of a change include an argument that solicitors are receiving preferential treatment compared with other professionals in England and Wales. Indeed, many of the consultees listed in the SDT's paper are other professional regulators which apply the civil standard of proof. We know, however, that the Law Society does not consider the standard that other regulators apply to be relevant. It considers that any change to the standard of proof should be "evidence-based and appropriate to the solicitors' profession", as there are significant differences in relation to how each profession's regulator or tribunal decides on an appropriate sanction and the effect of that sanction.

Time for a change?

Those outside the legal profession are likely to find it difficult to understand why disciplinary proceedings against solicitors should be subject to a different standard of proof than that which applies to other professionals. On the other hand, lowering the standard of proof could conceivably result in what might be perceived as harsh outcomes particularly in those cases involving the most serious allegations such as dishonesty. The result will be that the most serious types of misconduct, which could result in striking off, would be subject to the same standard of proof applied by the SRA in the types of case which warrant much lesser sanctions, such as a modest fine or reprimand.

The new test would have an impact on decisions by the SRA as to whether a case should be referred to the SDT given that part of the test for referral is whether there is a realistic prospect of a finding of misconduct by the SDT. We may therefore see more cases being referred to the SDT if the change to the standard of proof is made.

The Way Ahead

Responses to the consultation paper need to be submitted by 8 October 2018. The SDT will put the changes forward to the Legal Services Board later in the year.

It will probably not come as a shock to the SDT if the majority of the responses from within the profession oppose the change to the standard of proof. Indeed, the Law Society's summary of responses to their consultation highlighted an overwhelming majority in favour of retaining the criminal standard of proof. It remains to be seen whether such responses are a futile attempt to hold back the tide of change.

We will be watching developments in this area closely.

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.

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