BSB Consultation On Standard Of Proof In Lawyers' Disciplinary Proceedings

Author:Mr James Preece and Alexia Prakas
Profession:Clyde & Co

In November 2016, we published an article considering the standard of proof in lawyers' disciplinary proceedings, in light of the High Court's obiter comments in the case of Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin) ("the Arslan judgment"): see Standards of discipline: judicial comment on the standard of proof in SDT proceedings  . In light of the comments made in the Arslan judgment, the Bar Standards Board ("BSB") has revisited the question of whether the BSB should also change its approach and apply the civil, rather than the criminal, standard of proof in disciplinary proceedings for professional misconduct brought against those regulated by the BSB, therefore bringing it in line with many other professional regulators. The change would mean that rather than having to be sure that allegations of professional misconduct had been proven (in other words beyond reasonable doubt), the Bar's independent Disciplinary Tribunals would only have to find the charges proven on the balance of probabilities (i.e to the civil standard of proof). The BSB has produced a consultation paper, to invite consumers of legal services, members of the Bar, and bodies and individuals involved in regulatory disciplinary systems to express their views on the issue. The consultation paper can be found here.

As highlighted in our article last year, the Solicitors Disciplinary Tribunal ("SDT") also applies the criminal standard of proof. However, the BSB's consultation paper suggests that both the BSB and the SDT might currently be out of sync with the majority of other professional regulators. This raises the question as to whether this might be the 'beginning of the end' of applying the criminal standard in lawyers' disciplinary proceedings, across the two branches of the profession. Indeed, the paper notes that the Legal Services Board ("LSB") endorses the view that the civil standard should be applied by all legal regulators; and on balance, the BSB now appears to agree that the civil standard is probably more...

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