[1]Kenny: burden of proof and new ILEX code need to be debated by full board
The Legal Services Board (LSB) has delayed a decision on whether the civil standard of proof should apply to the Solicitors Regulation Authority’s (SRA) new powers to publicly rebuke and fine solicitors because of concerns raised by the Law Society and Solicitors Disciplinary Tribunal.
The SRA first tried to introduce the civil standard for its new powers in summer 2009, but the Master of the Rolls and the Lord Chancellor – whose role in approving new rules was taken over by the LSB on 1 January – declined concurrence because of the standard of proof provision.
The tribunal and the Law Society had expressed concern that the SRA rules would apply the civil standard but that the tribunal would be bound to apply the criminal standard of proof when dealing with appeals from SRA decisions.
The new powers are aimed at allowing the SRA to deal with relatively low-level misconduct which it believes should be punished with more than a private warning but does not need the full and drawn-out process of a tribunal hearing. However, solicitors can appeal against the SRA’s punishment to the tribunal.
Efforts to reach a compromise were unsuccessful and the issue was put to the new SRA board in January. It maintained the position that it was right in principle to apply the civil standard to SRA disciplinary processes. It was persuaded by the practice of other regulators and the fact that it did not consider solicitors to be, in essence, any different from many others where the civil standard was applied.
It also emphasised that the SRA would not make findings of dishonesty, making the question of the appropriate standard in SDT proceedings a separate matter.
The SRA suggested that it may be appropriate for the LSB to oversee discussions involving the SRA, tribunal and Law Society to resolve the disagreement. LSB chief executive Chris Kenny agreed and said “it will take some time for this to be undertaken”. Further, he said the full LSB wants to consider the application, and the first opportunity to do so will be at its meeting on 27 April.
Mr Kenny said the LSB would issue its decision the application by 14 May “if this proves possible”.
The LSB has also extended the decision time for approving the Institute of Legal Executives’ new code of conduct so that it too can be considered by the full board. ILEX Professional Standards – the Institute’s regulatory arm – proposes to alter the current rules-based code to become a principles-based code, and Mr Kenny said: “Due to the significance of this proposed alteration, we consider it appropriate for the full Legal Services Board to consider this application.” A decision is likely by 7 May.