Improving the diversity of those who sit in the Solicitors Disciplinary Tribunal (SDT) is “front and centre” of a major recruitment drive, according to the Court of Appeal judge overseeing the process.
Lady Justice Carr told Legal Futures said that for the first time the equal merit provision from the Equality Act 2010 may be used, at either the sift or interview stage of the selection process.
This would give priority to those from under-represented groups where there was no other way to distinguish between candidates’ skills, experience and expertise.
SDT president Ed Nally said using the provision was its idea and readily embraced by the Master of the Rolls, Sir Geoffrey Vos, who ultimately appoints the tribunal’s members.
“We do need a refresh,” he went on. “It’s six years since the last recruitment of its type and 10 since the last one on this scale.”
Carr: SDT an increasingly challenging environment
The SDT is looking for up to 15 solicitor members – who must have at least 10 years’ experience – and up to 10 lay members.
The fact that Sir Geoffrey nominated Lady Justice Carr – who is also vice-chair of the Judicial Appointments Commission – to chair the appointments panel demonstrated the “significance of appointment to the tribunal”, Mr Nally said.
The judge said the need to improve ethnic minority representation on tribunal panels was “front and centre of the recruitment drive” and “one of reasons I’ve been brought in”.
The recruitment panels themselves would be diverse too, she pledged, saying this was “a chance to take tribunal forward”.
Carr LJ described the tribunal as “an increasingly challenging environment”, with the variety of cases referred to the SDT having noticeably grown, especially amid the debate over how far professional regulation should impinge on a lawyer’s personal life.
As Mr Nally put it, “the boundaries of professional responsibility have expanded”.
And with the treatment of younger solicitors before the tribunal a particularly hot issue in recent times, he said he hoped practitioners “right in the heart of their active careers” would apply.
Mr Nally – whose second term as president comes to an end in February – said it was still “relatively early days” in the change to the civil standard of proof, but he said it has “not made an appreciable difference to the way cases have been determined”.
“There have been very few where the standard of proof has been the determinative factor,” he said. “The sky hasn’t fallen in. The members have adjusted in their deliberations on applying the balance of probabilities test, as have the advocates as well. It’s not been the sea change that some harbingers of doom predicted.”
Carr LJ said cases where it was one person’s word against another were the types where the standard of proof may make a difference – but taking action that could deprive a person of their livelihood was so serious anyway that the difference between the criminal standard and the “top-end civil” might “not be that great” anyway, she added.
Mr Nally agreed. The civil standard could be misrepresented as the toss of a coin: “You have to look for real cogency when you’re making what can be career-ending decisions.”
Representation for solicitors facing the tribunal is another topical issue. Mr Nally said he was “alive” to it. “Even though the respondents are generally solicitors, I don’t underestimate the stresses and strains of appearing before the tribunal.
“There is an equality of arms issue in play. I think the tribunal’s responsibility is to make sure a fair and just hearing is achieved.”
He rubbished “the idea that everybody is absolutely thrown to the wolves in front of the SDT”.
Carr LJ said “something would have had to have gone terribly wrong” for the lack of representation to be a solid ground of appeal. “[As a judge] you bend over backwards to make sure it’s fair,” she said.
The closing date for applications is 14 November. For all the details, including a webinar, see the SDT website.
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