The Solicitors Disciplinary Tribunal (SDT) has opened a consultation on the current standard of proof used in disciplinary proceedings.
The Tribunal is seeking views on whether it should be easier to prosecute solicitors for misconduct. At present, the standard of proof used in disciplinary proceedings is the criminal standard. However, the SDT has requested views on whether the current standard of proof is fit for purpose, or if it should instead apply the civil standard in line with other professional regulators.
Edward Nally, President of the Tribunal, said: “We have been preparing for this update and overhaul of our Rules for some time now. It is a perfect opportunity for us to tackle the question of the appropriate standard of proof to be applied in the future, which I know is a matter of great interest to many commentators and stakeholders. I have said before that we will take the initiative on this, and look forward to the results of the consultation with great interest. My intention is that at the end of the process the new Rules that emerge will be sustainable and clear, providing a solid framework for those engaging with the Tribunal in the future.”
The Solicitors Regulation Authority (SRA) is a key advocate for change, as it believes the current rules do not adequately protect the public. The SRA also feels that the current threshold for finding if a solicitor has breached the rules is too high.
However, opponents of change – such as the Law Society of England and Wales – are adamant that the bar must be high as such allegations could end a solicitor’s career.
A spokesperson for the Law Society said: “To help us prepare for this consultation, we sought our members’ views on the standard of proof at the Solicitors Disciplinary Tribunal so that we continue to reflect the views of our membership in our policy position.
“Solicitors said that the high prosecution success rate and the serious consequences of rulings are both good reasons for the SDT to require the regulator to prove allegations to ‘beyond reasonable doubt’.
“Respondents also suggested there is a lack of evidence to show that the application of the criminal standard of proof has been problematic in achieving a fair outcome. Recognising the substantial majority of our members’ views, the Law Society supports retaining the criminal standard of proof.”
The consultation will run from 16 July 2018 to 8 October 2018 and is available here.