A reasonable doubt is not good enough

Not only is the change to the civil standard of proof in disciplinary proceedings unlikely to result in more convictions, it is also a key differentiator marking out solicitors as trustworthy professionals, argues Michael Stacey

Can solicitors who are probably dishonest continue to practise? The answer is that they can.

Unless it is proved beyond a reasonable doubt that a solicitor is a crook, it is not enough for the Solicitors Disciplinary Tribunal to believe that he is probably a crook to find a charge of dishonesty proved.

The almost inevitable sanction of striking off cannot be applied if the charge is not proved to the criminal standard.

That issue is central to the justification for the proposed change from the criminal to the civil standard of proof in Solicitors Disciplinary Tribunal cases, which subject to the approval of the Legal Services Board, will be applied to new cases from 25 November 2019.

This is the same date that the SRA’s new Standards and Regulations replace the SRA Handbook.

Opponents have branded the change ‘antisolicitor’ and questioned the public interest justification, but there are good reasons to welcome it. Reform is overdue. It will strengthen the profession and help ensure that public confidence is maintained.

What is wrong with the current system?

Disciplinary proceedings are in some ways a hybrid of civil and criminal proceedings, although the courts have repeatedly described them as civil in character.

The standard of proof is not specified in statute or the SDT’s procedural rules. The present practice is based on the Divisional Court’s 1993 decision in Re A Solicitor [1993] QB 69, in which Lord Lane concluded that “at least in cases… where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof.”

That left open the question of what standard should be applied in cases involving lesser allegations which were not tantamount to a criminal offence, where some argued that the civil standard should apply.

A decade later, in 2003, the Divisional Court concluded in Aaron v Law Society [2003] EWHC 2271 that criminal standard should be applied where the allegations might result in suspension or striking off.

In practice, the criminal standard has been applied across the board. The position was complicated further by the introduction of a power in 2009 for the SRA to impose fines of up to £2,000 and reprimands on solicitors without reference to the tribunal.

The recipient of these sanctions has a right to appeal against them to the SDT. Since 2011 a similar mechanism has existed in relation to alternative business structures (ABSs) although the level of SRA sanction can be much higher.

The SRA made rules specifying that it would apply the civil standard of proof. On appeal the question was whether the SDT should apply its normal criminal standard or the SRA’s civil standard. Either way would create an anomaly.

In a 2016 case, Arslan, an appeal was made to the tribunal by a non-solicitor contractor against the SRA’s decision (applying the civil standard of proof ) to (i) make an order under section 43 of the Solicitors Act 1974 restricting his ability to be employed by a solicitors’ practice; and (ii) rebuke him and impose a financial penalty of £500.

The tribunal decided to apply its normal criminal standard of proof when deciding the appeal and overturned the SRA’s decisions.

The SRA appealed. The Divisional Court held that on such an appeal the tribunal should have applied the civil standard of proof, as the SRA was obliged to under its rules (Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin)).

The court declined to decide whether the tribunal should apply the civil standard when acting as a first instance decision maker, although it acknowledged that there “was considerable force in the point that the climate and approach to professional regulation and discipline have changed since Re A Solicitor was decided” and suggested that the authorities were “ripe for reconsideration”.

Sir Brian Leveson underlined “the need for a re-evaluation of the approach to disciplinary measures intended to protect the public”.

The purpose of regulation

Lord Bingham’s aphorism in Bolton v Law Society ([1994] 1 WLR 512): “to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth” is much used but doesn’t weaken by repetition.

Public confidence in the integrity of the profession is an essential purpose of statutory regulation and hence the administration of justice and the rule of law.

It weighs much more heavily in the balance than the risk that in some individual cases a solicitor may be sanctioned notwithstanding some doubt as to their guilt.

It is right that the approach should emphasise the risk to the public not the justice of the punishment.

In relation to the public interest in the change to the civil standard of proof, it is difficult to argue with the tribunal’s own statement that: “It is in the public interest that the tribunal is able to find proved allegations of misconduct on the basis that it is more likely than not to have occurred.

This will ensure that appropriate findings can be made and suitable sanction imposed where there have been serious breaches of professional obligations.”

Upholding public confidence in the integrity of the profession requires that, where misconduct is more likely than not to have occurred, the risks to confidence and the system are addressed.

Practical implications

It is not clear, given the already high proportion of successful prosecutions, that the change will make a difference in a large number of cases.

Even if it didn’t change the outcome of a single case it would still be valuable as a confidence building measure. There are also good technical reasons why it is not as big a change as it appears.

The tribunal is required to make factual determinations, determine what inferences should be drawn from the established facts, and then apply relevant legal and regulatory principles to determine whether the allegation is proved.

The burden is on the SRA to prove the essential elements of the allegation (not necessarily all the disputed facts or inferences).

Many cases before the tribunal do not involve any substantial disputes of fact. They are largely based on contemporaneous documentary evidence such as emails, financial records and contracts. Often the tribunal’s role is to determine culpability on the basis of undisputed facts.

However, a common area of dispute is the state of mind of the solicitor at the time of the alleged misconduct, which is usually based on the drawing of inferences. This is relevant whenever there is an allegation of lack of integrity or dishonesty.

Here the standard of proof can and does make a difference. For example, in Law Society v Waddingham, the Divisional Court considered an appeal by the SRA against a decision by the tribunal.

The case concerned solicitors who had made improper withdrawals from client account totalling just over £20,000. The tribunal found that the allegations of dishonesty made by the SRA had not been made out.

The primary facts were agreed and the case turned on the inferences to be drawn from those facts. The court concluded that the two solicitors concerned probably did act dishonestly but decided that it was not able to be sure that either of them acted dishonestly.

On the basis of the allegations found proved (excluding dishonesty), the court-imposed suspension orders of 18 months and 12 months respectively.

In Waddingham, the outcome would have been different had the civil standard applied, and the solicitors concerned would very likely have been struck off, rather than suspended.

Opponents of the proposed change argue that the civil standard of proof will make it easier for the SRA to prove allegations, when it already has a high success rate (around 90 per cent).

That may be true but misconduct proved to the civil standard is misconduct which should result in findings. If the high success rate is problematic, the answer would be to bring more cases which lead to acquittal.

That would be a questionable use of resource and hardly a benefit for those solicitors who were acquitted.

The change brings solicitors in line with the standards applied to other professions including barristers, doctors and accountants (vets are now the sole exception among professionals).

When the Bar is modernising faster than the solicitors’ profession, it shows that we are out of step.

Special pleading that this is unfair or a betrayal of the profession starts from the erroneous assumption that the protection of the profession rather than the protection of the public is the primary purpose of the regulatory scheme.

We are in a period of unprecedented change and competition from other providers of legal services, and the reputation of the solicitor brand is a key differentiator. It needs to be maintained.

Of course the impact of disciplinary proceedings on any professional should not be underestimated.

They are stressful and, if an adverse finding is made, can be a personal tragedy for that individual and their family.

The Law Society and other organisations have an important role to play in providing support. But to return to Lord Bingham in Bolton, “the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”

Michael Stacey is a senior associate at Russell-Cooke LLP and a contributor to The Law of Legal Services by John Gould (LexisNexis), a second edition of which is due for publication later this year russell-cooke.co.uk