The report to the Law Society Council setting out the work being done on Brexit was circulated to you recently. Although it was presented to us a confidential paper, I said I could see no reason not to circulate it to the profession and everyone agreed. I thought the paper demonstrated the sort of things the Law Society does very well on behalf of the profession. While some solicitors will be more affected than others, we should all be concerned that the best possible outcome is achieved following the Brexit vote.
I have got myself elected to the Council Membership Committee which is currently considering proposals to the Reform of Council. Your Committee is very clear on the value of Council Members acting as a link between Chancery Lane and the profession locally and I have done my best to canvas their views on the various issues arising as well relaying back to them what is going on nationally.
As so often is the case, the most valuable work is done behind the scenes by the various expert Committees (of which the Brexit one is a good example). These are composed mainly of non-Council Members and if anyone is interested in becoming involved in influencing a particular area of the law, please have a word with me because vacancies occur regularly and I would be happy to provide more information.
There is about to be a consultation of the profession concerning the standard of proof for the Solicitors Disciplinary Tribunal which should apply in disciplinary cases. At present it is the Criminal Standard (beyond all reasonable doubt) unless the Tribunal is hearing appeals from decision of the SRA where, following a decision of the Divisional Court, the Civil Standard (balance of probabilities) applies.
Leaving aside the absurdity of a Tribunal operating with different standards of proof, there is long standing judicial authority for the current position of the Law Society supporting the Criminal Standard (see in re a Solicitor (1993 Q B 69)) but in recent times the courts are tending towards the Civil Standard especially in children’s cases and sex abuse cases (apart of course from criminal trials). Other professional bodies use the Civil Standards. Indeed it was forced on the General Medical Council by the Health and Social Care Act 2008 following the Shipman case.
The argument in favour of change is that professions have rules setting them apart from everyone else in order to protect the public. So if you deal with a solicitor you know that solicitor has attained a level of competence by examination, has proper indemnity insurance and has to observe strict rules in handling other people’s money. It is therefore argued that a profession should put protection of the public ahead of protection of its own members. In considering the implication of this, it would be very wrong to think that the balance of probabilities means 51%. The judges have repeatedly made it clear that this is not so and that the more serious the case the higher the bar.