Standard of Proof in Bar Discipline

The Bar Standards Board is inviting comments on its proposals to bring the standard of proof into line with all professionals other than Vets and, for now, solicitors. Lucy Reed has exceeded her own high standards with an exceptional blog post on this.

In terms of the three questions the BSB asks, I agree  that the standard of proof should be the civil standard, that the decision should not await the SRA making such a shift, and I do not perceive equality or other impact concerns that should stop them doing so. I don;t propose to go into the arguments as the BSB’s document does that admirably and with concision.

I suspect one argument that may be made against the proposals is the risk of ‘political’ prosecutions of barristers for handling controversial cases. This is a risk that faces other professionals, although it might be thought to be a greater risk for lawyers, who’s work inevitably implicates them in greater controversy. Any such risk is properly protected by the independence of the regulator and prosecutorial decisions, rather than an artificially high burden of proof.

I hope also that a more public interest oriented standard of proof will also open the door to a wider range of enforcement, redress and restoration – with perhaps more disciplining of misconduct but a wider range of responses to such enforcement. Ethics is  important but it should perhaps rarely be the life and death of someone’s career. In particular, it is to be hoped that practitioners are less likely to fight made out misconduct conduct charges and more willing to engage in meaningful contrition and learning from their errors. This is not an approach likely to develop in scheme which has a criminal, adversarially oriented approach of which the balance of proof is one significant element.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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2 Responses to Standard of Proof in Bar Discipline

  1. Mike Willis says:

    Richard, these comments are yet another ticket to Salem and can’t be acceptable. The suggestion that the credit of a court Officer should be capable of instant demolition on less than cogent evidence, simply to avoid the pr inconvenience of tribunals being “perceived by the public as working in the interests of the profession and not in the interests of the public”, is a tabloid journalism approach, less ethically honest than many of the victims entrapped by it. I beg you to think again.

  2. Pingback: You’re masterful Mr President: Standards of Proof debate takes odd turn | Lawyer Watch

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