Tribunals holding the career of a solicitor in their hands should be sure of the facts before throwing them out of the profession, the Law Society said today. Responding to proposals to lower the standard of proof at the Solicitors Disciplinary Tribunal, it said sanctions are so severe as to require the criminal standard of proof to be applied.
The Society revealed the vast majority of its who responded to the tribunal’s call for opinions on the standard of proof support keeping the criminal rather than the proposed civil standard.
In its response, the Society said there is no evidence the public is not being properly protected by the criminal standard, and the public interest would not be served by making any change. Indeed by making solicitors reluctant to act in certain cases and be more cautious in how they serve clients it could be harmful to the public interest.
The Society pointed to a body of case law where judges have backed the application of a criminal standard in disciplinary proceedings. It also denounced the argument that the solicitors profession should be consistent with other sectors that apply a civil standard.
‘It would be wrong to simply change the standard of proof in order to fall in line with other regulated professions,’ said the Society. ‘The disparity of sanctions and approach of other regulators, including the lack of any fitness to practise rules, confirm that a like-for-like comparison cannot be made with other professions. The tribunal should be consistent with other solicitors’ tribunals in the United Kingdom that all establish facts beyond reasonable doubt.’
Meanwhile, the Society has urged the SRA to shelve thoughts of guidelines which require compliance officers to report solicitors where a rules breach is ‘capable of having occurred’. Instead, in a response to a separate consultation on reporting concerns, the organisation backs requiring compliance officers to speak out when a serious breach is ‘likely to have occurred’.
The lower threshold would be unfair on firms, said the Society, as they do not have the same powers as the SRA to obtain information, nor would they know the context of what might be considered a ‘serious breach’ of the rules.
The Society made clear that safeguards to prevent decision-makers from landing themselves in trouble should be in place. This would ensure the SRA can only allege failure to report when there is evidence they have acted without integrity or honesty, or if their decision to say nothing was ‘manifestly outside the boundaries of reasonableness’. To make the rules more draconian, it was argued, would simply lead to compliance officers reporting everything to the SRA.