The Legal Services Consumer Panel has been considering proposals to change the burden of proof in disciplinary hearings against barristers. It has been suggested that the current test, which is “beyond all reasonable doubt”, is too high. The panel’s preference is for the test to be the same as that which applies in the civil courts; that the finding must be made on “the balance of probabilities”. This is in line with other professions’ regulators. A link to the panel’s consultation is available here.
The standard of proof is also being reviewed for solicitors.
Balancing the interests of the professionals and the interests of the consumers using them is a difficult issue. On the one hand, the regulator needs to safeguard clients from falling victim to those few professionals who abuse their position and ought not to be practising. On the other hand, it is crucial to ensure that any allegations made against a professional are robustly investigated. A finding made at a disciplinary tribunal can ultimately lead to a professional losing their livelihood.
What really intrigued me about the panel’s conclusions was that as part of its commentary in support of the proposed changes, the panel suggested that, “Moving from the criminal standard of proof to the civil standard of proof will be fairer on consumers, and it may act as a positive incentive for barristers to deliver good services”. [My emphasis].
I find this suggestion bizarre. I imagine that there are many things that incentivise most lawyers; securing an excellent result for their clients, developing a reputation for excellence, building a strong practice and, I suppose, being financially rewarded. Not letting you clients down or damaging your professions' reputation will be important to any self-respecting professional but, the suggestion that barristers will be driven to change their behaviour because of a lowering of the burden of proof is unfair to the profession. In my experience, the vast majority of barristers already strive to ensure good service for their clients and will continue to do so regardless of any changes to the standard of proof.