The Solicitors Disciplinary Tribunal has confirmed that it will ask this year whether the bar for finding solicitors guilty of misconduct should be lowered from the criminal to the civil standard of proof.
In the tribunal’s annual report, tribunal president Edward Nally says the time is right to consult on the issue. Applications to the tribunal rose by 33% in 2017.
Currently the Solicitors Regulation Authority must prove guilt to a criminal standard, but it has long campaigned to have this eased. Nally said the SDT would ‘grasp the nettle’ to consult, and to include any changes in revised rules.
The SRA itself does not have the power to alter the standard but has argued that the status quo creates higher costs and increases the chance of a person not safe to practise remaining in the profession. The Bar Standards Board has already agreed that, from March 2019, cases will be determined on the balance of probabilities.
The Law Society has questioned what evidence exists to justify changing the current standard of proof.
In his report, Nally also expressed caution at the increased use of agreed outcomes to dispose of prosecutions without a contested hearing. The frequency of these resolutions has grown in the past year, he said, noting they can save on costs and ensure individuals ‘acknowledge the reality’ of their situation. But on occasion in the past year, the tribunal has refused to give the green light to an agreed outcome and referred matters back.
Nally said: ‘The tribunal is still exercising a judicial function and will not rubber stamp agreed outcomes which feel too lenient, or too draconian.’
In total in 2017, the tribunal received 152 applications involving solicitors, up from 119 in 2016, and 176 overall.
Despite this, the number of strike-offs fell from 76 in 2016 to 58 last year. Respondents were almost as likely to be fined as struck off when they appeared before the tribunal.
Reasons for striking off included dishonestly misappropriating client money, criminal conviction, overcharging clients and grossly misleading clients and/or employers by creating false documents.
The tribunal sat on 266 days in 2017, compared with 260 in 2016 and 180 in 2015. One case, involving Leigh Day and three of its lawyers, lasted seven weeks, but otherwise just three cases required more than five days to be heard.