Civil proof standard for disciplinary matters: just one problem
Tuesday 09 February 2010 by Rachel Rothwell
As we reported last week when the SRA takes on its Legal Services Act powers to conduct disciplinary matters itself – for lesser offences worth a maximum fine of £2,000 - it is going to do so using the civil standard of proof.
That means that, unlike in proceedings before the SDT, the SRA will only need to prove that the offence occurred ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’.
Solicitors will not be forced to go along with this. They will still have the option of choosing to have their alleged offence dealt with by the SDT, with its higher proof threshold.
Why would anyone choose to have their case heard by the SRA then?
The simple answer is: cash.
There is a real issue at the moment with the cost of proceedings before the SDT.
Where a solicitor contests the charges and is found guilty, the costs awarded against him can often be much greater than the actual fine issued. The SRA’s proceedings will be far cheaper, so if the solicitor does lose, at least it won’t cost as much.
But still, a lot of solicitors will be riled by the notion that their professional reputation could be seriously harmed on the basis that they were more likely to have committed an offence than not. Is this fair?
The SRA points out that there is a ‘strong trend’ towards the civil standard of proof in other sectors. It is applied in police misconduct cases, for example, and cases heard before the Financial Services and Markets Tribunal.
Why should solicitors be any different, it would argue, and perhaps it has a point.
The SRA’s civil standard will not be applied to offences where dishonesty is alleged – which really could be the ruin of their professional reputation – because the SRA’s policy is always to refer these to the SDT.
But there is one aspect of all this which makes something of a mockery of the SRA’s proposals, through no fault of the regulator itself.
Solicitors will be able to appeal their decision under SRA proceedings, and the appeal will be heard by the SDT. The SRA tried to persuade the SDT to maintain consistency by applying the civil proof standard, but so far it has refused, and shows no sign of budging.
So it seems for solicitors facing lesser offences, the course of action is clear.
In the first instance, save costs by having the case heard by the SRA. If things go badly, hop along to the SDT where the charges might be a bit more difficult to prove.
Although, of course, the best method is not to get yourself into trouble with the regulator in the first place.
Comments
Well naturally the SDT will
Well naturally the SDT will "budge"-pressure will be applied.
Comparisons should not be partial.
When solicitors are treated the same as police accused of misconduct, namely, their defence is fully funded, their anonymity is assured, even if the disciplinary offence is proved and penalties are proportionate to the offence, then and only then should we consider lowering the standard of proof but whilst the SRA hangs on to draconian 19th century style powers (and indeed takes every opportunity to enhance such powers) then they should retain the higher standard of proof.
This is just the thin end of
This is just the thin end of the wedge. I can see a day when even the SDT will say, "in accordance with good consumer protection policies etc etc" and perhaps even to preserve consistency as it says in the article, to shift to the civil burden.
Its been said before, and it needs to be said again, we are just over regulated and too weak as a profession!
Civil proof standard for disciplinary matters: just one problem
I curse the SRA and their mealey mouthed sanctimonious bile that the Government eject out of it. I would not recommend anybody to be a Solicitor, reading the hypocritical SRA page with the stone faced stoical Edwardian portrait that adorns it (and was probably paid for out of practising certificates).
On a referral by an aggrieved large organisation (aggrieved because my client had the audacity to challenge them); a Local Authority, a malicious complaint was made. This had no foundation and I lose count of the number of times I asked for a prima facie case to be provided, which was not and never has been. So, as a result? an unfounded disgruntled complaint from a Licensing Officer (who was the subject of a Judicial Review against them and their Council) was taken as more important than my version of events as a Solicitor with over 10 years' qualification and no previous disciplinary record). I received a reprimand. That is quite a useful tactical weapon the SRA have deliberately created for their Client-Government, in that any time a litigant who is a large organisation wants to intimidate their opponent and bounce their client out of prceedigns this is the way for them to do it.
Incidentally this was overturned on appeal. And the result? I ended up paying Counsel for a complaint that there was as the SDT confirmed, no evidence ( and therefore prima facie case) for.
One thing that does keep me motivated as a Solicitor (as after all, I could always 'practise law' as an unqualified, serial winder up of Limited Companies (say with Lichtenstein Offices) after the Legal Services Act 2007) is to see the end of the SRA and the persecutory approach that they salivate over (and all to be a lap dog of the Government and Local Authorities).
If there is some way of surcharging the members (to get my Barrister's Fees back - which of course the SRA won't pay as if you are a Solicitor you are guilty until proven innocent and expected to provide a better 'service' than they themselves do), then that would be an added bonus.
To be a thorn in the side of the SRA and Law Society now gives me great motivation.... I can recommend it to all competent well educated Solicitors who believe in the Rule of Law and the Separation of powers.
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