Rationale behind tribunal shift to civil standard of proof lacks consistency

The switch by the Solicitors Disciplinary Tribunal to the civil standard of proof may have been on the cards but the decision fails to address legitimate concerns, argues Susanna Heley

On 8 April 2019, the Solicitors Disciplinary Tribunal formally announced that it will seek approval from the Legal Services Board to introduce new rules specifying for the first time that it will apply the civil standard of proof in disciplinary cases. SDT President Ed Nally denied that the shift away from the criminal standard would make it easier to prosecute solicitors accused of misconduct because the SDT would still require cogent and compelling evidence of misconduct. Online comments would tend to indicate that this explanation was not particularly well received by those in the profession. The SDT consulted on the changes last year and published the responses. The view from the profession was overwhelmingly against the change however other regulators, the SRA and the Legal Services Consumer Panel supported the change. Their responses are all published on the SDT’s website.

SOMETHING WRONG?

For many in the profession, this news will have no practical or immediate impact. For some reason, it is generally assumed within the profession that you personally have to have done something wrong before you face SDT proceedings. In fact, that is not necessarily the case. A persistently statistically significant number of cases before the SDT involve Accounts Rules breaches. Those breaches are matters of strict liability for partners and it is not particularly rare for cases to be brought against multiple respondents where at least one respondent had no personal involvement in any misconduct. Where allegations are brought against firms, it will usually be as a result of one or more partners doing something wrong and everyone else is brought along for the ride. COLPs and COFAs are also vulnerable to prosecution for failing properly to clean up or report someone else’s mess.

The introduction of the SRA’s new ‘Standards and Regulations’ with effect from 25 November are unlikely to ameliorate this issue. In fact I would surmise that managers and supervisors will be at increased risk of prosecution under the new regime for secondary misconduct – ie failing to prevent, detect or report the misconduct of someone else. With this in mind, those in the profession could be forgiven for thinking that this announcement by the SDT is just one more in a long line of anti-solicitor decisions. While regulators consistently claim public interest as justification for such decisions, in fact it is difficult to see what benefit there is to the public. Take, for example, the decision to remove insurance cover for legal costs associated with regulatory and disciplinary investigations. One might suggest that it was not in the public interest to render the most vulnerable solicitors unable to afford representation to defend themselves. Was any perceived costs’ benefit associated with removing such cover really worth the significant risk of injustice and risk to mental health and wellbeing caused by removing that safety net?

DISENFRANCHISED PROFESSION

Throw in the SRA’s publicity policy and successive decisions by the courts on the meaning of dishonesty, integrity and what constitutes a banking facility for the purposes of the SRA Accounts Rules, and one can easily see why the profession feels betrayed and disenfranchised. Over the last ten years we have created a system which appears to be the most expensive and harshest of any system of regulation in any other sector. The system in which we work is unforgiving and creates stress. When clients, opponents or judges set unreasonable deadlines, when employers set impossible charging targets, when fear of consequences causes people to dishonestly backdate documents to cover up simple mistakes, we as a profession should be shocked and appalled by behaviour which is anomalous and far outside of our personal experience. It is truly sad that we have allowed ourselves to reach the point where these stories are not vanishingly rare, that none of these circumstances are exceptional. The SDT’s announcement is not a surprise. Its approach to the issue was inevitable but its published reasoning leaves rather a lot to be desired. Numerous issues are raised in the consultation responses which the SDT simply ignores or fails to grapple with. I rather suspect that both the SRA and the SDT will be in for something of a rude awakening when arguments over how exactly the civil standard will apply in practice start to emerge. Ironically, I suspect that it will create more scope for appeals and will lead to arguments as to who bears the burden of proving which facts and how such facts fit into the overall scheme of things. We must bear in mind, of course, that civil fraud trials, although conducted on the basis of the civil standard of proof, can be fully as complex and time consuming as their criminal counterparts.

INCONSISTENT APPROACH

Although the shift to the civil standard has been written in the cards for some time, what is truly disappointing in the SDT’s response is that there is no attempt to offset the consequences to individual solicitors in line with the practice of other regulators. While the SDT attempts to justify its changed position in relation to standard of proof by saying, in effect, that solicitors are not entitled to special treatment in the form of the criminal standard, there is no follow up on this point.

If solicitors are no different from any other profession, why should it take only three judges to strike off a solicitor when it takes five to disbar a barrister? Why should a dishonest solicitor never be allowed back to practice when a dishonest doctor may return on a prescribed route after five years? Why should solicitors not have access to representation through their insurance or representative bodies? The consultation does touch on a number of issues other than standard of proof. It considers that adopting the SRA’s suggestion of lay majorities would cause it to lose its identity as an expert tribunal. It made some tweaks to proposed rules on disclosure.

All in all, the consultation is worth reading. For those who continue to feel very strongly that the change to the civil standard should not be made, you may wish to keep an eye out for the application to the LSB and make further representations at that stage. The LSB had, after all, at one stage mooted the idea of abolishing the various legal services tribunals and bringing them all within the umbrella of the General Regulatory Chamber of the First Tier Tribunal. If the SDT is so concerned about not being perceived to be protectionist, perhaps it should advocate in favour of such a change. That would seem to be the logical conclusion to the argument now apparently accepted by the SDT that public perception is of paramount importance. It would also have the benefit of saving the profession money, which saving could, naturally, be passed on to consumers.