The Bar Standards Board (BSB) announced on 24 November that it has decided to change the standard of proof applied when barristers, and others regulated by the BSB, face disciplinary proceedings for professional misconduct. Subject to approval from the Legal Services Board (LSB), the standard of proof will change from the criminal standard ("beyond reasonable doubt") to the civil standard ("on the balance of probabilities").

The BSB proposes to apply the civil standard to alleged breaches of its code occurring after 31 March 2019, in order to allow a period of preparation. The announcement follows the BSB's consultation on the issue over the Summer (see BSB Consultation on Standard of Proof in Lawyers' Disciplinary Proceedings).

The appropriate standard of proof in lawyers' disciplinary proceedings has been a source of debate for some time, with the discussion intensifying last year following the judgment of The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin) (known as the 'Arslan judgment'). The question will now be whether the Solicitors Disciplinary Tribunal (SDT), will make the same change.

Background to the BSB Decision

To date both the Bar Tribunals and Adjudication Service (BTAS) and the SDT have applied the criminal standard of proof in disciplinary proceedings. Towards the end of last year, Mr Justice Leggatt, in obiter comments in the Arslan judgment, expressed sympathy for the view that it is unsatisfactory and illogical for the SDT, acting as primary fact finder, to apply a different standard of proof from the SRA when carrying out a similar fact finding role. Further, he described the authorities in support of the current approach as 'ripe for reconsideration' (see Standards of Discipline: Judicial Comment on the Standard of Proof in SDT proceedings).

Following the Arslan Judgment, the BSB revisited the question of whether it should change its approach. The consultation received 101 responses, the majority of them opposing a change. The Bar Council and the Commercial Bar Association indicated that their members were evenly split as to whether there should be a change, and the Inns were also divided. The BSB announcement will not therefore be met with universal approval by the profession.

The BSB has stated that the change is an important step forward in modernising the regulation of the Bar in the public interest, and its view is that this, along with the new disciplinary tribunal regulations, should give confidence to the public and barristers that the BSB's arrangements are robust, thorough and fair to all concerned.

Position of the SDT

It has always been the view of the Solicitors Regulation Authority (SRA) that both the SDT and BSB should lower the standard of proof to the civil standard, the standard also used by the SRA. This was the position argued by the SRA in the Arslan judgment.

The SDT indicated in July 2017 (in response to the BSB consultation) that it will, as part of the exercise of bringing forward its proposed new rules, be consulting on the appropriate standard of proof that should be applied in deliberations.

The SDT is governed by the Solicitors (Disciplinary Proceedings) Rules 2007, which do not specify a standard of proof. Without any specific written requirement (unlike the BSB) the SDT is reliant on case law for its source of authority as to the appropriate standard of proof to apply. Until the Arslan Judgment, the main case authorities, (Re a Solicitor [1993] QB 69 and Campbell v Hamlet [2005] UKPC 19) upon which the SDT relies, provided that the correct standard in disciplinary proceedings concerning the legal profession is the criminal standard.

Like the Bar, the solicitors profession is also divided on the appropriate standard of proof. The SRA's view is that if both the SDT and BSB utilise the civil standard, this would put the interests of the public first, rather than the individual members of the profession, give the public confidence in the regulatory system and deliver a consistent, fair and more efficient disciplinary process.

To support its position, the SRA has referred to the fact that the civil standard is used widely by other regulators including: all health professions regulators, the Accountancy and Actuarial Discipline Board and the Royal Institution of Chartered Surveyors. This discrepancy is also highlighted by the BSB in its consultation paper.

It could be argued however that the lower standard of proof applied by the SRA in its dealings with disciplinary matters reflects its more limited disciplinary sanctions. For instance, the SDT and SRA can both impose fines but the SDT can impose higher fines and while the SRA can restrict the scope of a solicitor's ability to practice, the SDT can suspend or strike a solicitor from the Roll.

On 16 October 2017, the Law Society published its own discussion paper (before the BSB announcement) and sought members' views ahead of the SDT's own consultation. Its view is that the SDT should continue to apply the criminal standard of proof as this is the position reflected in the case law and because it is the most appropriate standard when a solicitor's livelihood is at risk. It argues for an evidence based approach and states that it 'has yet to see any evidence that the current system is problematic in practice. Evidence should be gathered and analysed carefully before a decision is made and there should be a thorough impact assessment'.

The Law Society acknowledges the counter arguments, namely that it would be easier and cheaper for the SDT to prosecute cases using the civil standard; the criminal standard affords greater protection for solicitors than clients; and that most other sectors use the civil standard. However, the Law Society says that the arguments for change do not accord with the evidence. Furthermore it does not consider relevant the standard that other regulators apply, rather that 'any decisions that are made [to change the standard] should be evidence-based and appropriate to the solicitors' profession'.

The American Approach

The Law Society sets out what it considers to be a third possible option, that adopted by the American Bar Association (ABA). ABA disciplinary proceedings use a standard of proof of 'clear and convincing evidence' which is described in the commentary to Rule 18 of the ABA Model Rules for Lawyer Disciplinary Enforcement as a 'higher than "preponderance of the weight of credible evidence" which is usually deemed sufficient in civil proceedings, yet not as stringent as "beyond a reasonable doubt" required in criminal cases'.

The difficulty with this approach is that there is existing case law on the civil and criminal standard of proof, and therefore parties are clear what they mean. Introducing a new standard would bring uncertainty, at least in the short-term, until there is indication from the SDT and case-law indicating how this standard should be applied.

The Way Ahead

Now that the standard of proof used in barristers' disciplinary proceedings will change (subject to LSB approval), this will leave the SDT as the only legal services regulator to maintain the criminal standard and it would be one of only two professional regulators not utilising the civil standard, along with the Royal College of Veterinary Surgeons.

However, there remains a significant body of opinion within the profession that the serious nature of the allegations before the SDT, and the far reaching consequences for the individual solicitor if misconduct is found proven, justifies the status quo.

With the SDT issuing increasing penalties in recent months, and the SDT reportedly forecasting an increase in cases in light of the recent change to the test for dishonesty (see Ivey v Genting Casinos) the decision may have wider consequences for solicitors than ever before.