The Solicitors Disciplinary Tribunal (SDT) is to move from the criminal to the civil standard of proof and rejected suggestions that this will result in “easier prosecutions”.
It also urged the Solicitors Regulation Authority (SRA) to exercise the power given by the Legal Services Act 2007 to introduce a ‘fitness to practise’ regime.
Subject to Legal Services Board approval and the making of a statutory instrument, the SDT aims to introduce the new standard of proof on 25 November 2019, the same day as the SRA’s Standards & Regulations come into force.
SDT president Edward Nally said the protection of the public interest, and the promotion of the reputation and standing of the solicitors’ profession, would be “enhanced” by the new standard, as it allowed for findings to be made where it is more likely than not there has been professional misconduct.
“For those who believe that this move will result in ‘easier’ prosecutions of alleged misconduct breaches, I respectfully reject that proposition.
“The tribunal will continue to scrutinise robustly all allegations brought before it, and will continue to look for and identify cogent and compelling evidence before finding allegations proved.”
He added that the tribunal was currently in a minority amongst other similar tribunals in applying the criminal standard “was not a factor” in its decision. The SRA has backed the move, the Law Society had opposed it.
Publishing a response to the consultation it issued last year, the SDT acknowledged that the change might result in the SRA referring more matters “because of a perception that it would be easier to secure a finding against a practitioner”.
It continued: “However, balanced against this is the fact that SRA have significant disciplinary powers which they can and do exercise already for less serious matters of professional misconduct, so that only the most serious professional misconduct is referred to the Tribunal.
“In other words, the criteria for deciding whether a case is referred to the tribunal are based on the seriousness of the allegations, not the standard of proof.
“In any event, if there were to be an increase in the number of matters of serious professional misconduct referred to the tribunal and found proved due to a change in the standard of proof, then it is arguable that this would be in the public interest.”
A fitness to practise regime would not be disciplinary in nature and would run separately from any disciplinary proceedings. The SDT said this was for the SRA to implement, and it encouraged the regulator “to consider carefully” whether to do so.
The response paper said: “Health issues are a reoccurring theme in proceedings before the tribunal. Not infrequently the tribunal finds itself without medical evidence to assist it in determining applications made on the grounds of physical or mental health.
“In some instances these issues only emerge during the course of the proceedings but in a number of others these issues are raised by the solicitor concerned with the SRA prior to the issue of proceedings.
“If medical evidence corroborates the fact that mental or physical ill-health was a significant factor in any professional misconduct and continues to affect the person concerned, the tribunal would consider a separate fitness to practise regime as more suited to such circumstances than proceedings before the tribunal.”
The consultation response also rejected the idea to move from a solicitor majority on the three-person SDT panels to a lay majority. This would “change the character of the tribunal,” it said.
“With a change of dynamic in the tribunal, there would be a significant risk that the tribunal would lose its identity as an expert tribunal.
“In addition, the tribunal considered that having two solicitor members meant that each tribunal is more likely to have a range of experience from practice and this would not be the case with just one solicitor member.”
The SDT will make a series of more technical changes to its rules following the consultation, including that, once a panel has announced its findings, it will be made aware of any internal sanctions imposed by the SRA against the respondent solicitor.
The consultation received 28 external responses to its consultation on the issue last year, plus a further six by SDT members.
SRA chair Anna Bradley welcomed the decision. “This means that when something goes wrong, the public can be more confident that their interests come first,” she said.
Law Society president Christina Blacklaws said the high success rate for prosecutions at the SDT showed the SRA has been “perfectly able” to bring cases meeting the criminal standard of proof and expressed disappointment at the decision to change it.
“There is an inequality of arms between an individual solicitor and the well-resourced regulatory body, and so the SDT’s assurance that it will continue to require the regulator to meet a high standard of proof where any misconduct has been alleged is reassuring,” she said.
“Retaining a solicitor majority on SDT panels, as the Law Society recommended, will ensure a range of legal expertise continues to inform the tribunal’s decision-making.”
In a tweet, James Dalton, head of general insurance policy at the Association of British Insurers, said: “Insurers support this proposal which brings solicitors into line with other professions & was recommended in the Insurance Fraud Taskforce’s 2016 report. It should provide greater public protection and make it simpler & less costly for the SRA to prosecute in appropriate cases.”