There is yet another momentous change for the profession on 25 November 2019 – this time at the Solicitors Disciplinary Tribunal (“the Tribunal”). The standard of proof will change from the criminal standard (beyond reasonable doubt) to the civil standard (on the balance of probabilities) for all proceedings issued on or after 25 November.

The Tribunal was first established in 1975 by the Solicitors Act 1974, a statute which still governs the profession. For over 40 years, the SRA (and its predecessors) have been required to prove all allegations in the Tribunal to the highest standard of proof. This requirement has acted as a brake upon the regulator’s more imaginative links between evidence and allegations but this constraint will no longer be there to protect the profession.

Until recently, the only professions to retain the criminal standard of proof for disciplinary tribunals were solicitors; barristers and veterinary surgeons. Changes had been made to medical tribunals in 2008 after the Harold Shipman case on the basis of what was described by the government at the time as “a loss of public confidence in regulators”.  Since then, there has been steady pressure upon the remaining regulators to fall in line including remarks made obiter in Arslan[1]. Barristers were the first to succumb and change to a civil standard on 1 April 2019.

In response to the Tribunal’s consultation, the majority of solicitors and solicitors’ representative bodies were in favour of retaining the criminal standard whilst those in favour of the civil standard, unsurprisingly, included the SRA and other regulatory bodies including the Legal Services Consumer Panel. A suggestion that there should be a lay majority on the disciplinary panels was thankfully rejected on the basis that it would risk the Tribunal’s identity as an expert tribunal and would reduce the range of experience from practice on the panel. There will remain two practising solicitors and one lay member on each Tribunal panel.

It was of course always unlikely that the Tribunal would be able to swim against the overwhelming tide of “public interest” so, almost inevitably, a decision was made for solicitors to switch to the civil standard on 25 November. Thereafter, the only profession to retain the criminal standard will be veterinary surgeons.

For the first time, the standard of proof will be contained (Rule 5) in the actual Tribunal rules which will be known as the Solicitors (Disciplinary Proceedings) Rules 2019 (“the Rules”).  The Tribunal has also taken the opportunity to expand the number of  procedural rules from 23 in the 2007 version to 51 in 2019. This change is in contrast to the SRA’s insistence upon simplification and shortening of its own rules but reflects the increased complexity of cases being heard by the Tribunal. The additional rules incorporate a number of the Tribunal’s existing practice directions and also include  various case management and evidential requirements which are not sufficiently interesting for detailing in this column.

The new Rules do, however, now include, in common with the civil courts, an “overriding objective” at Rule 4 which provides that “the Tribunal will deal with cases justly and at proportionate cost”. The SRA has since the introduction of the 2011 Code of Conduct been unable to resist racking up as many breaches and allegations as possible for consideration by the Tribunal, regardless of proportionality. In one case in which I appeared (Stephens[2]), where there were 24 separate alleged breaches (19 not proved), I observed to the Tribunal that the SRA statement of allegations “was oppressive and read like the answer to an exam question”. Complexity and cost (Leigh Day being the most obvious)) have been a significant feature of every SRA investigation in recent years so a specific rule focussing on proportionate cost (which after all is paid for by the profession) is most welcome.

However, the problem of complexity and cost begins within the SRA during the investigation stage before cases are referred to the Tribunal. Cases are assessed within the SRA Supervision team, frequently by non-solicitors. There is a tendency to “throw the kitchen sink” at those being investigated for fear of leaving anything out. Allegations of lack of integrity are commonplace, even with breaches of the Accounts Rules. Allegations of dishonesty are added for good measure without proper consideration of the evidence. The SRA is able to impose its own stamp on simplified rules to allege misconduct where a practising solicitor could see none.

Why should we be concerned and alert to the change in the standard of proof at the Tribunal? With the move away from rules-based regulation which began in 2011, it has been possible for the regulator to rely upon its own interpretation of the Principles and Code of Conduct and to impose upon the profession its own version of what it regards as professional misconduct, with some influence from politicians and the media. The current conduct rules and the new Standards & Regulations are short on prescription and long on interpretation. The only effective challenge to that interpretation lies in the hands of the Tribunal but with a lower standard of proof the ability to test the SRA’s views of professional misconduct will be reduced.

Some reassurance has been provided by the President of the Tribunal Edward Nally who announced that “We will apply the new standard of proof justly and with a keen appreciation of the cogency of the evidence that all those appearing before us are entitled to expect”. We will need to rely upon the Tribunal to scrutinise the evidence robustly and ensure that justice is done, especially where respondents are unrepresented, as is often the case.

The majority of the profession will never have experienced the Tribunal but as with homelessness, there is a risk of being only a few steps away from it however careful one’s compliance arrangements. There is already a “David and Goliath” situation where unless a respondent is well funded by his own means or has insurance the possibility of contesting the SRA’s allegations with expert advice falls by the wayside and injustice may follow. With the safeguard of the criminal standard of proof about to be removed, the profession needs to be made aware of the risks and consider its own preventative measures.

[1] SRA v SDT & Arslan & Law Society [2016] EWHC 2862(Admin)

[2] SRA v Louise Stephens 2016 11424-2015

 

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