In the public interest? The SDT's burdensome move to a civil standard of proof

Wrangling over the change to the civil standard of proof has been a distraction from addressing more pressing issues, argues Jean-Yves Gilg

The Solicitors Regulation Authority (SRA) has been pressing for a change to the standard of proof in Solicitors Disciplinary Tribunal (SDT) proceedings for years. 

In December 2016, chief executive Paul Philip confidently claimed that the regulator was “pushing an open door” on the issue. 

This was met with a stern – and seasonal – response by the tribunal’s then chief executive that Philip’s statement was “a mere Christmas wishlist”. 

Just over two years on and with a new chief executive at the helm, the tribunal appears to have bowed to the general pressure.

Of course the SRA isn’t the only one in favour of the change. Many supporters argue that there is no reason the SDT should have different evidential rules.

They point to the fact that most professional tribunals have already moved to the civil standard. 

Medicine is the comparison most often cited – a sector where, just like solicitors if not more so, the professionals concerned undertake years of in-depth training and where mistakes can have devastating consequences on both patients and doctors. 

But such is the tide of liberalisation that is sweeping through the profession that the tribunal would probably be waging a losing battle if it continued to keep the criminal standard.

However, there is clear unease in the explanations provided by tribunal president Edward Nally. 

Public interest – a concept used by both proponents and opponents of the change – is put forward as a main reason. It’s difficult to see exactly how this would be the case.

Perhaps this would allow the SRA to secure convictions for rogue solicitors more easily? Not so, as Nally rejects the claim that the move “will result in ‘easier’ prosecutions”. 

So how is the public interest better protected? What of solicitors found guilty of what the same public would regard as shocking misconduct but who escape with just a fine? 

And what about the junior lawyers under unfair pressure from supervisors ending up

struck off before they can even have a career?

And let’s not mention the unregulated providers who, by definition, are not accountable to any regulator and will not be answerable to any professional tribunal. 

In truth, the wrangling over the change to the civil standard of proof has been a distraction from addressing more pressing issues in relation to enforcement and the prevention of breaches as a matter of policy. 

It has taken attention away from a more joined-up effort to look at the regulatory and enforcement framework as a whole.

Instead regulatory bodies and tribunals should take a concerted approach to these matters under the coordination of the Legal Services Board. 

Switch to the civil standard? That’s absolutely fine, but we also need the SRA to take a more active role in how the rules are applied – not just watchdog but partner too, if that can be contemplated. 

Let’s also revisit precedents so that some offences do not lead to automatic strike off. And let’s maybe make it possible for solicitors who have been struck off to come back into the profession, just like doctors can, subject to conditions. 

The new rules are yet to be approved by the Legal Services Board (LSB), so there are opportunities, still, to air these concerns.

This will also be the chance for the LSB to show that it can be a truly committed umbrella regulator worthy of the profession’s trust.