Law Society: Change raises costs issues
The Solicitor Regulation Authority (SRA) enjoys the “highest prosecution success rate of any regulator we have found”, making it unnecessary to lower the standard of proof, the Law Society has said.
In 2016, allegations by the SRA were upheld, at least in part, in 205 out of 214 cases, “a conviction rate of 96%” – compared to the Crown Prosecution Service’s 84% and higher than that of regulators like the General Medical Council that already work to the civil standard.
Responding to the Solicitors Disciplinary Tribunal’s (SDT) consultation [1] on whether to switch from the criminal to the civil standard of proof, the society went on: “While the tribunal is one of few professional disciplinary tribunals that retain the criminal standard in England and Wales, the prosecution success rate is much higher than other professional regulators.”
The Law Society said that given the “draconian nature” of the SDT’s powers, it should be “sure of the facts in all cases” before striking off or indefinitely suspending a solicitor.
“The financial consequences to solicitors are considerable for any appearance at the tribunal, even for minor offences. There is a cost to the individual and a firm in preparing for and appearing at a tribunal which is not analogous for other professions.
“Defence costs are often unaffordable and could be increased were the standard of proof to be altered.
“Unlike some other professions such as accountants, the loss of the title of solicitor prevents the solicitor from practising and if they are a sole practitioner, their firm will have to close immediately, even in the case of suspension.”
The society said the SRA was ordered to pay costs only in exceptional circumstances and “many solicitors feel there is an inequality in the whole process” as the SRA was able to fund specialist advocates, while solicitors often had to represent themselves.
The society said members had questioned whether solicitors facing disciplinary allegations should have to pay “any contribution” to costs at the tribunal, as it was funded through the practising certificate fee and contributions from firms.
“If cases were brought on a balance of probability test, the costs rules would need to be revisited, together with the principle by which the SRA recovers costs.
“At present, even if no allegations are upheld the SRA is unlikely to be ordered to pay the respondent solicitor’s costs.” This is because the SRA is seen as working in the public interest.
The society pointed to its counterparts in Scotland, Northern Ireland, the Republic of Ireland and Germany, which all used the criminal standard of proof.
“While the effects of Brexit are unknown at the time of writing, it would appear inconsistent for professions in other jurisdictions to operate a different standard, particularly if any rights to carry out legal work across jurisdictions are maintained.”
In its response [2], the SRA backed the civil standard and called for SDT panels to have a lay majority.