The Law Society has demanded to see proof that would justify making it easier to strike practitioners off the roll. Chancery Lane says that no evidence has yet been produced to support altering the standard of proof for cases going through the Solicitors Disciplinary Tribunal.
The tribunal is expected to review the standard it applies towards the end of this year, with backing from the Solicitors Regulation Authority to switch from a criminal to a civil standard.
The Society formal position has been and remains to support the criminal standard of proof, requiring prosecutions to be proved ’beyond reasonable doubt’. But in a discussion paper published today the representative body puts forward both sides of the argument and acknowledges there is a perception that the criminal standard protects solicitors rather than clients.
The Society stresses that it has seen no evidence that current rules make it any more difficult to prosecute cases, pointing out that the SRA’s rate of successful prosecutions is very high.
The Society is seeking members’ views on what position to take with the tribunal and says it is not enough to justify reform simply by asserting that the civil standard (upon the ‘balance of probabilities’) is applied in other professions.
It adds: ‘The tribunal can strike solicitors off and impose fines of unlimited financial value; these sanctions can have a profound and lasting effect on solicitors, ending careers and impacting on livelihoods.’
The paper suggests the nature of the tribunal – where the ‘full might’ of the regulator goes up against an individual solicitor – more closely resembles a criminal trial than civil proceedings.
But it acknowledges the discrepancy whereby the SRA prosecutes less serious rule breaches by applying the civil standard. The Society puts forward a potential third option, drawn from the US, where the standard switches depending on circumstances.