Solicitors could face £2K fine based on lower standard of proof
Solicitors may be fined up to £2,000 based on the civil rather than criminal standard of proof, under plans to lower the level of proof required before a fine can be imposed.
Rules agreed at the Solicitors Regulation Authority’s last board meeting will mean that the SRA can impose a fine if it is able to prove the case against a solicitor on the balance of probabilities, rather than beyond reasonable doubt.
Currently, the SRA only has powers to reprimand solicitors, and must refer the matter to the Solicitors Disciplinary Tribunal (SDT) if it is seeking a fine or suspension. The SDT requires charges to be proved to the criminal standard, beyond reasonable doubt.
However, under the Legal Services Act 2007, the SRA will soon have the power to impose a fine of up to £2,000 without recourse to the SDT. The SRA has voted to adopt the civil standard of proof in these proceedings.
The new rule means that where a solicitor chooses to have a lesser conduct matter dealt with directly by the SRA – which is likely to be a popular approach as this will incur far lower costs than appearing before the SDT – the allegations against them will only need to be proved to the civil standard.
As solicitors will have a right to appeal the SRA’s decision before the SDT, they will face a higher standard of proof on appeal, meaning that an appeal is more likely to succeed. The SDT has indicated that it is reluctant to lower its standard of proof.
The Law Society opposed the rule change. In a letter to the SRA, Law Society director of government relations Russell Wallman said the standard of proof should be ‘beyond reasonable doubt’ where there was an express allegation of dishonesty, or an allegation which was likely to result in a solicitor being struck off or suspended, or would lead to a condition being imposed on a practising certificate which would ‘substantially affect the solicitor’s ability to practise’.
An SRA spokesman said it always referred a matter to the SDT where dishonesty was involved. The civil standard of proof is adopted for disciplinary proceedings in other sectors, such as the medical profession.
Comments
Ker-ching!
Form an orderly queue, clients!
The future
It will be interesting to see how this plays out.
Well, take heart-the
Well, take heart-the President has confirmed that there is a lasting settlement in the relationship of the representative body to the regulatory one. There surely is- the same as Tony Blair had to George W Bush.
Colonisation
The Council of the Law Society voted to separate regulation and representation in 2005. It should be made clear that this was at the behest of Sir David Clementi and Lord Falconer, the then Lord Chancellor, who personally attended the Council to "ram home" his view that representation and regulation should be separated. A small number of Council Members voted against the move but the vast majority voted in favour. Henceforth, regulations would be made through an appointed board with some lay members on it noty through the mostly elected Council of The Law Society. The Council were, I think, mindful of two things. The first was that the government was going to legislate to take away its regulatory powers anyway and the second was that the old bug bear of complaints would be shifted off onto a separate Office for Legal Complaints. The relationship between the representative part of the Law Society and the regulatory board soon broke down. I gain the impression that the Law Society leadership hopes that the appointment of Charles Plant will change this.
Personally, I think the new arrangements are an anathema. “No taxation without representation” being an old cry but a valid one. The new arrangements are almost certain to fail because they invite conflict between the regulator and the representatives, simply because the regulators have so much power and the representatives have none but the government has put in its own “backstop” to cover that eventuality. The price of failure will be heavy fines from the new LSB and so representatives and regulators will have an incentive to get on “or else”.
If this all sounds like the way the British Raj coerced previously independent Indian Princely States then that is pure coincidence. Not.
Solicitors join the GMC
"...An SRA spokesman said it always referred a matter to the SDT where dishonesty was involved. The civil standard of proof is adopted for disciplinary proceedings in other sectors, such as the medical profession..."
One would imagine that the majority of those practising in the medical field would be more subject to cases of negligence than dishonesty as being the charges brought before the GMC, why not (SRA) go one better and bring hearings before the 'The Disciplinary Committee of the Royal College of Veterinary Surgeons'. Surley, the standard of proof at a hearing before the RCVS is far lower.
Who let the dogs out?
Re: Colonisation
With regard to the above comment, it was not for the Council to take the decision it did. It was a matter which should have been put to the Profession as a whole. The Councils record in looking after the Profession is lamentable and it has indeed "sat too long for any good it may do".
If the Government wished to legislate then that is what should have happened. The Government would have been unlikely to do so, but even if it did, the Law Society would then have had a proper role in defending the profession. The problems and failures of regulation would have been the Governments and not the professions (as is the case with the FSA). The curent system is indeed anathema, being seen by the public as protecting the profession (see the comments regarding Wolstenholmes) and by the profession as expensive, interfering and unrealistic bureaucracy.
The hope that Charles Plant will change things is likely to be disappointed - he will probably look after the "constituency" from which he came but no other. In any event the system has effectively been cast as it is and too many people will lose well paid jobs if it were to change-unlikely in the extreme.
Apathy
The Council of the Law Society is as it is because of the almost apathy of the profession. The profession only seems to wake up when a crisis, such as the PII crisis of October 2009, comes into fruition and then it goes to sleep again. No thought for the future. Just a belief in the complete invincibility of the profession, despite a catastrophic collapse in living standards, for the average solicitor, over the last 30 years.
The government did legislate. That is what the Legal Services Act 2007 was about, in part.
What can I say about the public image of the profession. People love their solicitor but hate solicitors in general.
The disciplinary structure of the profession is completely draconian and radically inefficient and costly. It is in urgent need of modernisation. Instead, it seems hell bent on replicating Soviet style charges (Anti Soviet Activities = Bringing the profession into disrepute), to catch us all out.
However, nothing will change because individual solicitors still think of themselves as superior to others and the press and public encourage this. This ridiculous mindset, which continues despite relative impoverishment (GPs now earn twice the money of an average high street partner), will be the death of us all. The supermarkets and large corporates will take our work and we will be sitting there like crazed impoverished daughters of the gentry in the early 20th century lamenting not being able to afford the heating but still insisting on our noble lineage and superiority to the rich farmers who have bought our ancestral lands.
Meanwhile, so called competition will have destroyed the high street.
Raising standards
The impact of these changes may well raise standards, let us see.
Would Your Client Accept a Caution?
You have obviously never encountered an SRA investigation or an LCS one or you could not possibly say this.
This is a ploy to avoid going to the SDT and to lower the standard of proof, so that anyone can be found guilty on any complaint arsing from “principle based” legislation, which can be re-interpreted at will.
Then those people can be summarily dealt with by a fine lower than £2000.00. They can buy their freedom and the SRA can say that they have cleared up another case.
This is the SRA equivalent of the caution or fixed penalty notice. Of course, they are so radically out of touch that they still think £2000.00 is a drop in the ocean for all solicitors.
About as fair as a brunette!
Criminals get merely cautioned for breaking the law - the impact of an SRA/LCS decision could be to destroy the life of an otherwise perfectly good solicitor because of one, potentially innocent, incident. Where is the justice? Not within the profession!
Plea bargaining?
This sounds like plea bargaining; even if innocent pay up what amounts to a month's net income for many of us these days, or risk a real caning from the SDT. By the way I am always staggered by the amounts of costs awarded at the SDT against respondents - no wish to 'go soft' on those who fall short of the mark, but it does look to me a bit like kicking a man when he's down.
Perhaps we should get ourselves a real trade union that will not bother with maintaining a subservient relationship with either the SRA or the government, and will just fight our corner. But I guess we lost our professional staus some while ago - advertising for clients, becoming estate agents' sidekicks and now paying them referral fees. Poodles who roll over tend to get a kick up the backside rather than their tummies tickled!