Introduction

Coming, as it does, close on the heels of the announcement by the Solicitors Regulation Authority (SRA) of a date for the implementation of a new rule book, the news that the Solicitors Disciplinary Tribunal (SDT) is to adopt the civil of standard of proof in cases brought by the SRA could just be a coincidence.  Clearly, the fact that the move to the new standard will take place on the same day that the new rule book comes into effect, most certainly is not, and may go some way to explain why the SRA has delayed the launch of the new rules until quite so late in the year.  Why let absence of corroboration spoil a great conspiracy theory?

The announcement by the SDT at the beginning of April that it intends to apply to the Legal Services Board (LSB) for a change to its rules comes despite opposition from the Law Society and others and, combined with a the less prescriptive version of the rule book due to be launched on the 25 November, could make it increasingly difficult for those before the SDT to defend successfully allegations of dishonesty.  Especially given the far greater resources of the SRA to prosecute matters.

So, is the change something to be welcomed or condemned? Should we happy that the regulators have been given the opportunity better to weed out the bad apples (to mix a metaphor) or should we be concerned that power has been given to the SRA to prove dishonesty in cases where possibly the proof was not as strong as it ought to be?

The Standard of Proof

The role of the SDT is to adjudicate upon alleged breaches of the rules and regulations by individual solicitors and firms. In doing so it is both a first instance decision maker (in relation to cases brought before it – usually by the SRA and often involving serious allegations of professional misconduct) – and an appellate body (in relation to appeals made to it in respect of regulatory decisions made by the SRA.

Section 46 of the Solicitors Act 1974^[i] gives the SDT wide discretion in relation to its own procedures. Indeed, s46(5A) – inserted by the Legal Services Act 2007 – states that “The Tribunal may do anything calculated to facilitate, or incidental or conducive to, the carrying out of its functions’. Indeed, it is vital to the best interests of the respect of the profession that it has a body with both independence (of the profession and, it is hoped, the regulator) with the ability to direct its own procedures.

That said, however, it is also important that the interests of those brought before it are respected and the enormity of the consequences of an adverse finding upon the lives of those subject to its jurisdiction understood.  That is where the standard of proof – in other words the level of certainty and the degree of evidence necessary to establish proof of allegations of professional misconduct – is vital.  Set the bar too high and those whose behaviour taints the profession will find it easier to evade justice.  Set the bar too low and those who are the victims of bullying, external pressure, circumstances – or who are simply an inconvenience to the SRA or the establishment (did someone mention Leigh Day?) – can find themselves unable to practise and have their lives snatched away from them.

Standards of proof or not all equal, however, and this is where the changes at the SDT become controversial.  Currently, the Standard of proof adopted by the SDT is that known as the “criminal standard of proof” which is usually defined as ‘beyond reasonable doubt’.  The change will see the SDT adopting the civil standard which is based instead upon the ‘balance of probabilities’.

The view taken by the Law Society, and many of those involved in the defence of matters before the SDT, is that it should apply the criminal standard.  This is a position backed up by common sense – i.e. if a person’s livelihood is at risk then a higher standard of proof should be appropriate – and supported by case law.  This is not just in the more recent cases such as Privy Council in Campbell v Hamlett [2005] UKPC 19^[ii] where it was stated:

or in House of Lords in re D v Life Sentence Review Commissioners (Northern Ireland) [2008] UKHL 33^[iii] where it was stated (obiter) by Lord Carswell:

The view is one which can, in fact be traced by the 1950’s when it was stated in Bhandari v Advocates Committee [1956] 1 WLR 1442 that:

a view reiterated in 1993, in Re a Solicitor [1993] QB 69 where Lord Lane CJ stated:

where the tribunal in question was, in fact, the SDT.

Not that it is only in relation to solicitors that this view is taken.  In the case of Fish v. GMC [2012] EWHC (Admin)^[iv] it was stated that:

In this case, a doctor faced three charges of dishonest misconduct in relation failing to pay accommodation costs, over claiming for hours worked and the removal of a declaration of truth from a form that was completed.  Despite dismissing the first two allegations, the Tribunal found that the doctor had acted deceitfully, notwithstanding the fact that the finding was illogical and without motive – a finding which it may not have reached had the criminal standard been applied.

Why Do We Need to Change?

If then the courts believe that the correct standard to apply is the criminal standard, why are we seeing a change to the civil standard?

Essentially, there are four reasons.  These include:

• It makes it easier and cheaper for the SRA to prosecute cases – and there can be no doubt, whatever ones views, that the costs to the SRA of prosecuting cases before the SDT are increasing.
• There is the general mood of the times – that clients need to be protected from their legal advisers (who, if the bodies like the Legal Services Consumer panel are to be believed are suffering “the shortcomings of the firms with whom they deal”)
• Other sectors use the civil standard – such as the General Medical Council in its fitness to practice hearings and the Bar Standards Board in hearings before the Bar Tribunals and Adjudication Service
• Pressure from on high – a legal sector that cannot be controlled by government might start following up on potentially embarrassing issues such as the legality of government policies (fracking, claims against the armed forces and human rights breaches) or just generally being there to protect the rights of citizens against the state.

One thing is for certain is that the move is certainly not because the SRA is not succeeding on the whole with the cases which it brings to the SDT.  The SRA Annual Review for 2016/2017^[v] (the last for which we have statistics) revealed that of the 117 cases brought to the SDT that year, there were only 7 in which no order was made with 59 resulting in a strike off, 57 in a fine and 18 in a suspension. In the previous year^[vi] of the 129 cases brought, only 3 resulted in no order.

A further reason could be an attempt to rectify the imbalance not just with other sectors but also with the SRA itself. In 2010 the SRA began to use the civil standard of proof – a decision that was made (the cynical amongst us might say intentionally to put pressure on the SDT) in the knowledge that it would create a discrepancy with the SDT’s procedures and rules – especially in relation to appeals to the SDT.

It would seem, therefore, that change is inevitable.  However, it is worth noting that some doubt has been cast upon the decision of the GMC to adopt the civil standard of proof (See a Royal College of Surgeon’s Bulletin article entitled “GMC: Time to Reconsider the Civil Standard of Proof” by A van Dellen^[vii]).

Proponents will argue that lowering the standard of proof – which is in effect what adopting the civil standard means, will act as a deterrent.  As was stated in a paper published by Louis Kaplow in Harvard’s Olin Centre for Law, Economics and Business^[viii] “reducing the evidence threshold will increase the probability that individuals who contemplate the commission of harmful acts would expect to be subject to sanctions”.

Against this, however, has to be balanced the fact that decisions of the SDT – especially those involving a striking off – will inevitably impact greatly upon an individuals ability to practise and thus earn a living, meet debts and expenses even their mental and physical well-being and so should not be treated lightly or without full consideration of the facts.

Indeed, recent cases where those who have been subject to intense pressures at work including bullying and overly-high case loads have shown that even with the current level of proof, strikings off can still occur in circumstances where arguable there should have mitigating circumstances.

The Change to the Rules

As mentioned earlier, it is probably no coincidence that the change to the civil standard is set to come into force on the same day as the SRA’s new set of rules – and indeed, it might be thought that this explains why the rules have been introduced much later than many commentators thought would be the case .

The new rules have been hailed by the SRA as allowing “solicitors greater flexibility in how they work”.  In particular they have claimed that the “removal of many prescriptive rules will reduce the burden on solicitors and law firms and allow solicitors greater freedom to use their professional judgement in considering how they meet the standards.”

The problem of course is that with greater flexibility comes a greater lack of certainty.  There can be no doubt that that the new rules are not as prescriptive as before and as a consequence there is greater potential for disagreement as to what is and is not professional misconduct – notwithstanding the SRA’s revised enforcement strategy.

We have already seen an increase in the number of cases brought to the SDT where the SRA has relied upon the Principles in the current Handbook rather than upon breach of specific rules.  Allegations based around Principle 2 – Failing to act with integrity and Principle 6 – failing to behave in a way that maintains the trust the public places in solicitors and the provision of legal services are becoming increasingly common.  How much easier will it be for the SRA to bring proceedings under the new rule book where individual solicitors are actually being encouraged to interpret the rules themselves rather than having precise interpretations offered from within the rules. There is even a new principle – acting with honesty (which is not defined in the glossary to the rules).

How much harder is going to be for a solicitor who believes he has interpreted the rules correctly to show that he should not be sanctioned when the standard of proof becomes much lower?

Conclusion

There are, it is true, arguments for requiring all professionals to be subject to the same standards of proof.  Possibly it is illogical for barristers to be subject to one standard and solicitors to another.

The Law Society has suggested that other standards of proof could apply – for example the “clear and convincing evidence” standard adopted in many of the States in the USA or the “sliding scale” approach which is already being rejected in those tribunals that apply it (if only because it introduces further uncertainty).  Neither are probably correct.

The fact remains – and it is the argument put in court cases over some considerable time and so well summed up in the Fish v GMC case referred to above – “an allegation of dishonesty should not be found to be established against anyone… except on solid grounds”  It is an allegation that can be career-ending and “should not be made without good reason… At the end of the day, no-one should be found to have been dishonest on a side wind or by some kind of default setting in the mechanism of the inquiry. It is an issue that must be articulated, addressed and adjudged head-on.”

Unfortunately, the standard of proof looks to be a ship that has sailed, and all that solicitors can do is to act in such a way that it remains, for them, a topic of purely academic interest!

[i] https://www.legislation.gov.uk/ukpga/1974/47/section/46

[ii] https://www.bailii.org/uk/cases/UKPC/2005/19.html

[iii] https://www.bailii.org/uk/cases/UKHL/2008/33.html

[iv] https://www.bailii.org/ew/cases/EWHC/Admin/2012/1269.html

[v] https://www.sra.org.uk/sra/how-we-work/reports/annual-review/annual-review-2016-17.page

[vi] https://www.sra.org.uk/sra/how-we-work/reports/annual-review/annual-review-2015-16.page

[vii] https://publishing.rcseng.ac.uk/doi/pdf/10.1308/147363513X13500508917738

[viii] http://www.law.harvard.edu/programs/olin_center/papers/pdf/Kaplow_710.pdf