The standard of proof in solicitor AND barrister disciplinary hearings should be lowered, says SRA
Days after Leigh Day lawyers cleared on 19 misconduct charges
The Solicitors Regulation Authority (SRA) has said using a criminal standard of proof in lawyer disciplinary hearings is “costly”, “unfair” and “burdensome”, and that the standard should be lowered in cases involving both solicitors and barristers.
In May the barrister regulator, the Bar Standards Board (BSB), launched a consultation into the standard of proof it adopts in disciplinary matters. At present, the BSB and the Bar Tribunal and Adjudication Service (BTAS) use the criminal standard of proof (beyond reasonable doubt). The consultation floats the idea of lowering this to the civil standard (on the balance of probabilities), which will make it easier for barristers to be disciplined.
While the SRA itself adopts a civil standard of proof, it has limited powers and must refer more serious cases to the Solicitors Disciplinary Tribunal (SDT), which adopts the criminal standard. On Friday, the SDT ruled that embattled law firm Leigh Day and three of its lawyers — who were accused of pursuing false claims against British troops, among other things — should be cleared of misconduct. The case was the longest, and is forecasted to be the most expensive, in SDT history.
Today, the SRA has formally given the thumbs up to the BSB/SDT standard being lowered from criminal to civil. Responding to the BSB’s consultation, the SRA said:
We agree that the BSB should change its regulatory arrangements to allow for the civil standard to be applied to allegations of professional misconduct.
As for the SDT’s position, the SRA said: “We have, since 2010, consistently called upon the SDT to move to the civil standard of proof so that the public interest can be better served… The criminal standard of proof means that the interests of individual solicitors or barristers always be put above those of the public. The use of the criminal standard of proof in regulatory decisions is costly, burdensome, unfair to the users of legal services and undermines confidence in the profession.”
The BSB consultation closes on 21 July.
Read the SRA’s consultation response in full here:
For all the latest commercial awareness info, and advance notification of Legal Cheek’s careers events, sign up to the Legal Cheek Hub.