I have recently been invited to comment on whether the standard of proof needed to strike a solicitor off the roll should be changed.
Am I entirely alone in wondering whether the law (as gradually applied by amendments to the Solicitors Act 1974, and as applied by the court) has taken a completely wrong turn here?
If I ask the trustee of the pension fund: ‘Where is the money?’; or the custody sergeant: ‘Why is this man lying on the floor of his cell in a pool of blood?’; or the ward sister: ‘Why is this patient lying unconscious in a pool of his own urine?’; or the headmaster: ‘Why is this child locked in a broom cupboard with a gag in his mouth?’ and they answer: ‘No comment’, it does not begin to prove beyond reasonable doubt that they are guilty of theft, assault, neglect, child abuse or whatever. But it does prove they are unfit to hold the office with which they have been entrusted.
If there is prima facie evidence that misconduct on the part of a solicitor has been committed, and they are called upon to ‘show cause’ why they should not be struck off, the burden of proof surely lies on them to show either that they are innocent of that (or any) misconduct – or at least that their misconduct is such that a lesser penalty is appropriate.
Solicitors are, par excellence, trustees. Every trustee is liable to give an account of how they have discharged their trust. If they cannot, they are unfit to hold it.
They may be innocent (or entitled to escape conviction) of crime, but that is a completely different matter. If the solicitors’ profession wishes to be held in any sort of regard (or to be entitled to any sort of self-respect) part II of the Solicitors Act (of which I invite a careful rereading) needs a radical rethink.
N.J.C. Thorowgood, Clifton Ingram, Reading