SRA renews call for civil standard of proof in disciplinary proceedings

Regulator claims criminal standard puts lawyers' interests above the public's

The Solicitors Regulation Authority has renewed its call to drop the criminal standard of proof in proceedings before the Solicitors Disciplinary Tribunal and move to the civil one instead.

'We regulate in the public interest, as do all regulators, so our priority is public protection,' The SRA said. 'The criminal standard of proof means that the interest of individual solicitors or barristers always be put above those of the public.'

Responding to a Bar Standards Board consultation asking whether the barristers' tribunal should adopt the civil standard, the SRA pointed to the High Court ruling in Arslan last November (2016). Judges in the case, the SRA said, 'made clear their view that the present situation in which the SDT applies a different standard of proof is unsatisfactory and illogical'.

Further, the regulator claimed, 'the higher burden of proof creates an incentive for defendants to fight cases, rather than to settle them through a paper-based process'.

The SRA's response was filed within days of the regulator failing to convince the SDT '“ after a seven-week hearing costing an estimated £10m '“ that Leigh Day and three of its lawyers, including co-founder Martyn Day, were in breach of solicitors rules over claims of torture brought against the British Army in Iraq.

In its consultation, the BSB said it considered the civil standard was 'probably more appropriate in the public interest' but it wanted to make sure the move would not undermine the efficiency of current procedures or the public's trust in them.

Citing research by the Insurance Fraud Taskforce, the SRA responded that 'the current inconsistent approach with the SDT applying a standard of proof which is more generous to solicitors means '[the SRA's] enforcement actions may not act as a credible deterrent'.'

The SRA's push for the adoption of the civil standard in the SDT has so far fallen on deaf ears. Chief executive Paul Philip's confident view that the SRA is pushing an open door was curtly rebuffed by the tribunal's clerk and CEO Susan Humble who said this was merely a Christmas wish list.

Unlike the Bar Tribunals and Adjudication Service (BTAS), the Legal Services Act does not technically regard the SDT as a regulator, as it operates independently of the SRA or Law Society. This has allowed the solicitors' tribunal to remain mostly untouched in the general push for the civil standard in legal services regulation.

Any change to the standard of proof in the SDT would require legislative intervention, which the SRA has accepted wasn't 'imminent'. But much as the SRA supported consistency in approach between BTAS and the SDT, it suggested the BSB shouldn't wait for the SDT to move to the criminal standard.

A move by the BSB to the civil standard 'would be both in the public and the profession's interest to make the changes as soon as possible', the SRA said.

The move to the civil standard in BTAS proceedings means misconduct allegations against solicitors in BSB-regulated organisations would be assessed under the civil standard.

Jean-Yves Gilg is editor-in-chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg