Standard of proof change for misconduct charges against solicitors
On 7 May 2019, the Solicitors Disciplinary Tribunal (SDT) applied to the Legal Services Board for approval to alter its rules, to allow it to decide cases on the civil standard of proof. If it is successful, solicitors facing future misconduct charges will have their cases assessed according to the arguably less stringent balance of probabilities, rather than beyond reasonable doubt (the standard of proof adopted by the criminal courts) which is currently applied. The decision period has recently been extended to 4 August 2019. If approved, the SDT aims for the new rules to come into force on 25 November 2019.
The president of the SDT has denied that the reform will render it ‘easier’ for prosecutors to secure misconduct rulings against solicitors, saying:
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,
This move followed the Bar Standard Board’s recent shift to the civil standard of proof. As well as barristers, the shift will bring solicitors into line with both licensed conveyancers and legal executives, who are also regulated to the civil standard (as, indeed, are the vast majority of the members of professional bodies).
Increase in claims?
Having regard to the trends of other professional disciplinary bodies, it is not unreasonable to expect that complaints to the Solicitors Regulation Authority will increase off the back of the shift to the civil standard of proof. As discussed in our previous article, the Royal Institute of British Architects (RIBA) has received steadily increasing numbers of complaints over the last three years and the decisions published by the Architects Registration Board (ARB), the independent regulator of all UK registered architects, have gone a similar way.
Factors to which those increases have been attributed include increasingly savvy claimants and their advisors utilising regulatory complaints to ‘test the waters’ before bringing civil proceedings or, as seems more applicable here, the threat of a complaint being made during the course of a civil dispute as a pressure point for the purposes of settlement discussions. It is easy to envisage such tactics being deployed where breach of fiduciary duty (i.e. the deliberate preference of another’s interests over those of the solicitors’ client – which is tantamount to an allegation of dishonesty) is alleged against a solicitor.
In circumstances where cover for SDT proceedings is not included within the scope of the solicitors minimum terms for professional indemnity insurance - and in light of a less stringent burden of proof before the SDT - such threats are likely to cause significant concern amongst those who receive them.
Support for the shift in standard of proof
Interestingly, when the potential shift was in its consultation process, the Association of British Insurers (ABI) strongly supported the move to the civil standard of proof. The ABI indicated that the civil standard would:
- Be more proportionate than the criminal standard
- Be more likely to provide greater public protection and elicit a positive public reaction
- Make it easier and less costly for the SRA to prosecute in appropriate cases.
The ABI was keen to stress that the lowering of the standard of proof must not lead to a reduction in the thoroughness of investigations by the SRA, its support for the shift being based upon the SRA clearly demonstrating that it conducts investigations fully and properly.
In the future, insurers should expect to see an increase in the number of solicitor insureds seeking extensions to their policies to include the costs associated with the defence of SDT proceedings. It is also possible that both insurers and solicitor insureds defending claims brought by former clients will be increasingly faced with the unwelcome distraction of referrals and SRA investigations running in tandem with civil claims. Solicitors should look to their internal guidance and, where appropriate, tighten it to reduce the scope for allegations of failure to comply with the SRA Code of Conduct.