Civil standard of proof a “positive incentive for solicitors”

Chambers: Switch to civil standard is overdue

Adopting the civil standard of proof for Solicitors Disciplinary Tribunal (SDT) prosecutions could act as a “positive incentive for solicitors to deliver good services”, the Legal Services Consumer Panel (LSCP) has said.

Meanwhile, the Bar Standards Board has received the green light to adopt the civil standard from next year.

Responding to the SDT’s consultation on changing the standard of proof, Sarah Chambers, chair of the LSCP, said it was “of the strong opinion” that the current criminal standard did not “serve the interest of consumers or the public”.

Describing the switch to the civil standard as “overdue”, Ms Chambers said that adopting the same standard as the Solicitors Regulation Authority (SRA) would “facilitate better understanding of decisions and may improve consistency”.

Ms Chambers referred to the backing of the Legal Services Board (LSB) for the move in 2014, when the oversight regulator said it could not be right for a lawyer who “probably stole client funds” to continue practising “just because the regulator is not sure beyond reasonable doubt” that they did it.

She said the LSB made the “important point” that the Judicial Conduct Investigations Office used the civil standard of proof.

The SRA strongly supports the move, while the Law Society opposes it.

The LSCP also agreed with the SRA’s call for disciplinary panels to have a lay majority as well.

“This would support public confidence by addressing any perception of a structural bias in favour of solicitors.”

Though there has not yet been a formal announcement from the LSB, the chair of the Bar Standards Board, Baroness Blackstone, said yesterday that it had approved the changes necessary to move from the criminal to the civil standard of proof.

“So this change can now take effect for alleged breaches of the code occurring after 31 March 2019, as we intended,” she said.

Meanwhile, the consumer panel has told the LSB of its major reservations about aspects of the SRA’s Handbook rewrite, which is currently with the oversight regulator for approval.

Ms Chambers said the SRA had “failed to strike the right balance” between flexibility and consumer protection.

She said the regulator had failed to consider the “damage to public confidence” that could result from allowing solicitors to practise from unregulated businesses without indemnity insurance.

“A scandal affecting one or more solicitors, leaving consumers with no recourse to recoup any or some money lost, will erode public confidence.

“And quite frankly, it wouldn’t matter whether these solicitors are working in unregulated entities or not, because consumers rightly expect the title of solicitor to come with a level of regulatory protection.

“Unfortunately, the SRA’s proposals have gone too far to remove these well-established consumer protections.”

Ms Chambers said it was “equally worrying” that the SRA was proposing to use information remedies to mitigate reductions in consumer protection, referring to a report published by the panel in 2017 which warned against their inappropriate use.

“The panel is of the strong view that the reduction in consumer protections which accompany the SRA’s proposals cannot be mitigated entirely by relying on information remedies.

“It is simply unsuitable for this purpose. More importantly, the SRA cannot compel businesses, which it does not regulate, to issue, monitor or supervise the adherence of regulatory information.”

Ms Chambers said nothing she had seen addressed the “real disadvantages” for vulnerable consumers, who were “expected to navigate and deal with more complexity and confusion resulting from the varying levels of protection that will accompany the title ‘solicitor’”.

She concluded: “The SRA proposals will add extra layers of complexity to what is already a minefield for consumers.

“And to further compound this, the SRA also proposes a separate standard for freelance solicitors. Freelance solicitors will not be obliged to purchase insurance to the SRA’s minimum terms and conditions under its submitted proposals.

“The panel cannot support these proposals because the reduction in consumer protection is tilted too far against consumers, without any quantifiable benefits.

“There is a lack of robust cost-benefit analysis which must accompany such a seismic shift in regulatory policy and reductions in consumer protection.”

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