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LSB must “knock heads together” to lower burden of proof in disciplinary proceedings

Elisabeth Davies [1]

Davies: “a real danger nothing will happen”

The Legal Services Board (LSB) must “knock heads together” to replace the criminal burden of proof in disciplinary proceedings involving solicitors and barristers with the civil standard, the chair of the Legal Services Consumer Panel has said.

Elisabeth Davies said the criminal burden “disproportionately favours” the protection of lawyers and could allow rule-breakers to stay in practice.

Her comments came as it emerged in papers for last week’s meeting of the Bar Standards Board (BSB) that the BSB met the Solicitors Disciplinary Tribunal (SDT) this summer to discuss the issue.

The LSB called earlier this year for all legal regulators to apply the civil standard of proof.

“If the BSB and SDT wait for each other to move to the civil standard, there’s a real danger nothing will happen,” Ms Davies said.

“The Legal Services Board was right to conclude recently that the criminal standard disproportionately favours protection of the lawyer over protection of the consumer, since it allows lawyers who probably have seriously breached their conduct rules to continue to practise.

“Most professions, and indeed other regulators in the legal sector, have now moved to the civil standard.

“As the BSB acknowledges, very little progress on this issue has been made for years, even though its own view is that the civil standard is most appropriate for protection of the public. We’d like the LSB to knock heads together and break this impasse.”

According to the BSB board papers, Susan Humble, chief executive of the SDT, said at the meeting with the BSB that the tribunal’s position had not changed.

“She confirmed that the SDT remains of the view that it is bound by law to apply the criminal standard and is not intending to seek primary legislation to make a change.”

The papers went on: “In the light of the SDT’s firm position on the criminal standard, there is no prospect of it taking voluntary steps to change the standard of proof.

“Therefore, unless the board wishes to change its previous position that a unilateral challenge to the burden of proof would be inappropriate, the BSB is not at this time in a position to make any further progress on the issue”.

A spokesman for the BSB added: “Since 2011 the position of the BSB has been that, in principle, the civil standard of proof for professional misconduct is more appropriate for the protection of the public.

“However, it remains our view that moving from the criminal standard of proof, while this is still used by the SDT, would result in the two main branches of the legal profession applying different standards in their disciplinary proceedings, which would create confusion.

“The BSB will keep a close eye on any relevant cases progressing through the courts and will revisit our position in 2016/17 subject to any judicial rulings prior to that time.”