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Change in disciplinary standard of proof “will incentivise barristers to deliver good services”, says consumer panel

Martin: current standard is too stringent

The Legal Services Consumer Panel has given strong backing to the Bar Standards Board’s (BSB) proposal to reduce the standard of proof in disciplinary proceedings from the criminal to the civil standard.

“[It] will be fairer on consumers, and it may act as a positive incentive for barristers to deliver good services,” panel chair Dr Jane Martin wrote in response to the consultation.

“The panel is of the strong opinion that the current standard of proof is too stringent and does not serve the consumers interest.”

The response argued that trust and confidence in the profession was best served “when consumers can be assured that the probability of misconduct will be addressed in all reasonable circumstances”.

Dr Martin noted that, when the Law Commission considered the standard of proof for health and social care professionals in 2012, it found strong public protection arguments for adopting the civil standard.

The commission said: “The criminal standard implies that someone who is more likely than not to be a danger to the public should be allowed to continue practising, just so long as the panel is not sure that he or she is a danger to the public.

“It seems to us that professional regulation is quite different from the criminal context, where the state is required to make sure that someone has committed a crime before taking the extreme and punitive step of imprisoning him or her.”

Dr Martin commented: “Although the Law Commission view was expressed in the context of health and social care professionals, the argument could be applied to legal professionals. The time is therefore right for the BSB to change its position on this important issue.”

The response said the change should also give “greater confidence of redress” for consumers with a legitimate complaint, particularly in the face of evidence from panel research showing an increase in the number of ‘silent sufferers’ – consumers who had a complaint, but did nothing about it – in the past year, from 35% in 2016 to 49% in 2017.

The panel backed the arguments that a barrister or solicitor who was more likely than not to be incompetent might be a risk to their clients, and that it could not be right that a professional who probably stole client funds was allowed to continue practising just because the regulator was not sure beyond reasonable doubt that they stole client funds.

The panel urged the BSB not to wait for the Solicitors Disciplinary Tribunal to change the standard in its cases: “This change must come about because it is right, reasonable and fair, irrespective of what may be going on in another place.”