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:

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16 Comments

Anonymous

Arguably the criminal standard is entirely appropriate, considering that you are effectively tasked with taking away someone’s livelihood.

After spending £37K over four years tuition (LPC not BPTC) I would be quite miffed if someone decided that on balance of probability I should be banned from practising.

(30)(2)
Anonymous

For any tribunal, regardless of standard, to resort to the ‘nuclear option’ of banning you from practicing, you would have had to have done something pretty inexcusable.

I don’t see how what you paid to study law has anything to do with it

(2)(7)
Anonymous

More an issue of absentmindedly using an adjective rather than a verb but I’m glad my mistake has made you feel a bit better about yourself

(5)(5)
Anonymous

No, you can’t. Practise = advise = verb. Practice = advice = noun.

(2)(1)
Anonymous

You can’t spell it either way: practice is the noun, practise is the verb. The best comparison is advice and advise. More a case of absentmindedly not knowing there is no adjective involved in this at all. The participle and the gerund are both spelt “practising”. “Practicing” does not exist in British English. It doesn’t make me feel better about myself, it makes me despair of pre-legal education and the possibility of having young lawyers able to draft decently.

(3)(0)
Anonymous

I think you meant to say

“you would have had to have possibly done something pretty inexcusable, but possibly not done it, it doesn’t matter whether we’re sure you did it or not”

(1)(0)
Anonymous

Yeah, let’s lower the standard of proof for those pesky lefties, bark the counterfeit-impartial rightist lawyers.

(1)(3)
Anonymous

The SRA’s argument appears to be “it’ll be cheaper, consumers will like that there are more convictions, and anyway, everyone else is doing it”. Doesn’t sound much like “it’s in the interests of justice”, does it?

The whole “it protects the public” argument rings hollow- there’s greater public protection from locking up a killer on a civil standard of proof than there is from striking off a bazza. That being the case, we must lower the standard of proof for convicting murderers before we lower it for barristers, no?

Criminal standard of proof is appropriate given (i) the fact that you’re taking away someone’s livelihood and (ii) the vast inequality of arms between a self employed barrister and the BSB.

(15)(0)
Scep Tick

On the other hand, with the criminal standard, you have a situation where the SDT says “well, this solicitor is probably bent, but we’ll take no action.”

You could have a High Court order a solicitor to pay millions because of misconduct, but the SDT not throw them out of the profession and instead let them practise without a stain on their character.

I think every other regulator has a civil standard.

So it does not do much for public confidence that solicitors (and barristers) have managed to put up a system that gives THEM more protection than doctors or architects or opticians or whatever.

(4)(0)
Anonymous

Essentially they are arguing we want to make it easier to take away peoples careers away because we can’t be bothered to find things like evidence.

(8)(0)
Mac the Knoife

Let’s apply this logic to the criminal courts:

More victims will get justice and at lower cost if the standard of proof is reduced.

The fact that more innocent people will probably be convicted is a side issue.

(8)(0)
Mac the Knoife

In fact, why bother with trials?

Most people arrested by the police are probably guilty, so cut out the middle-man and let the custody sergeant decide on sentence.

Likewise, why should people who accuse lawyers of misconduct have to go to the trouble of satisfying a tribunal so they’re sure the lawyer was at fault, when it’s easier and cheaper to just toss a coin?

(9)(0)

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