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Change misconduct proof standard to balance of probabilities, SLCC argues

5 July 2019

The standard of proof applied by the Scottish Solicitors' Discipline Tribunal in professional misconduct proceedings should be lowered to the civil standard of balance of probilities, according to the Scottish Legal Complaints Commission.

In its response to the consultation by the tribunal on whether to change the standard from the existing level of beyond reasonable doubt, the SLCC believes that the tribunal should fall in line with its many counterparts, including the legal profession in England & Wales, as well as health, social and financial regulators in the UK and Scotland.

It argues that such a change would reassure the public and the profession that "an up to date, proportionate and logical approach" is being taken to the discipline of Scottish solicitors. The change would also assist in removing another layer of complexity in an already complicated process, in which a single complaint can be subjected to multiple threshold tests and standards of proof, if it is investigated for different purposes.

"While we appreciate that complaints prosecuted as potential Professional Misconduct can have very serious consequences for lawyers, not all conduct allegations are equally serious", the SLCC states. "We agree that findings and sanctions need to be proportionate, to protect both the reputation of the legal profession and the public interest."

Click here to view the full response.


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