An unattainable chasm? A layman’s evidential difficulties in disciplinary proceedings

“…[O]bserve with your own eyes and not with those of others, hearken with your own ears and not with the ears of others” —‘Abdu’l-Bahá

Professional Misconduct

Roger Richards was a solicitor in the United Kingdom.  In 1998 a client (well call him John’) came to see him.

John was almost 80.  He wanted to write a will.

Naturally, Richards questions turned to what assets Old man John had.  John had a property worth £50,000.00.  It was mortgaged. The redemption sum was only £17,200.00.

John wanted to charge his property to another man for £6,000.00.  He wanted to take the money and – would you believe it – do up his garden.  He then wanted to sell the property and keep the difference.

Richards said he knew ‘someone who could make a better offer’ of £10,000.00 in exchange for them having some equity in the house.

John agreed.

Later Richards identified these new lenders as his children.

What Richards did not tell John was, Richards was using his own money in the name of the children.

Richards then pretended to put up a new garage, erected a new fence, and carried out window repairs.  So, for these relatively minor works, Richards paid more money to contractors, in the name of the old man.

He then continued to act for his client when there was a conflict of interest between him and his client.

The judge though Richards had purchased an interest in the property in the value of £32,000.00 for a giving out a mere £10,000.00 from a vulnerable old man.  After selling the property, John would be left with nothing.  Richards thus took unfair advantage of an old man.

There is another phrase for that: taking advantage.

Richards was found guilty of conduct unbefitting a solicitor.  He was thrown out of the profession.1Richards v. The Law Society (Solicitors’ Regulation Authority) [2009] EWHC 2087.

Take the case of R v Kumar. 2[2006] EWCA Crim 1946

A lady came to see him with breast cancer issues.  A clinical examination was necessary. He went too far.  He started pawing her.  It was proven that he did it for sexual gratification.

She complained.  He was found guilty of the crime of sexual assault and found guilty of misconduct.  He was also thrown out of his profession.

These are examples of ethical misconduct by professionals.

Professionals must exhibit a high degree of ethical behaviour in their work. If they do not, they can be hauled up on charges of misconduct.

Where there is such a complaint, the body to which the professional belongs (the MMC or the Disciplinary Board) — not the courts — conduct investigations against the professional.

To prove misconduct, how much proof must a layperson lay before a disciplinary tribunal?

Imagine you are the complainant.  Suppose every piece of evidence in a case took the form of a brick.

If you stacked all of your evidence, one on top of the other — against a professional — the bricks must cross a certain height.

That height is called the ‘standard of proof’.

Criminal standard: ‘At least 85% believability’

There are two standards of proof in any court proceeding.

In criminal cases the height is high: it is a ‘standard of proof’ that is ‘beyond reasonable doubt’ (‘BRD’).

The judge hearing a criminal case must be convinced that the evidence before her does not give her any reasonable doubt of the guilt of the accused.

Some people say that line is ’85% believability’.

To convict an accused of murder, or rape, or theft, the prosecution needs to present evidence that is 85% believable.

If the judge has a 15% ‘doubt’, that is okay – she can convict.

Civil Standard: ‘More than 51% believability’

In civil cases, the line is lower: it is called the ‘balance of probabilities’.

Some people say it is ‘anything more than 51%’ believability.

Lawyers and judges dislike numerical descriptions of legal principles. They argue that these are based on false premises. That is a story for another day.

But you get the idea.

‘Right to life’ and ‘Right to livelihood’

The right to life is a right higher than a constitutional right.  It is a ‘fundamental right’. Thus, the Federal Constitution ‘guarantees’ the right to life.

Article 5(1) states:

‘A person’s life or personal liberty may not be deprived save in accordance with the law’.

The ‘right to life’ is part of the ‘right to livelihood’.3Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301. The Federal Court ruled that ‘It is a ‘fundamental right guaranteed by Article5(1) that a person’s life or personal liberty may not be deprived save in accordance with state action that is fair both in point of procedure and substance’: see paragraph 8, p.310 of report

A person may lose his hard-won livelihood at the end of disciplinary proceedings.

Where would he and his family be, at the end of the day?

So, to protect a person’s livelihood, in disciplinary cases, the courts have always demanded that an accuser must show evidence on a criminal standard of proof.

The shadows gather

Considerable debate has grown over the last 10 years: it is whether the height of proof should be lowered for disciplinary proceedings.

Its proponents argue that disciplinary proceedings are there to protect members of the public.

If a professional (being the person complained against) comes to defend himself at a disciplinary tribunal, the burden on a layperson (the complainant) becomes unbearably difficult.

They may ask him technical questions. When he is asked to meet the criminal standard – and show a very high level of evidence – professional bodies should not make his life difficult.

A disciplinary tribunal must make it easy for an accuser to prove his complaint.

So the argument goes.

Which would you choose?

If you were asked: Which principle would you prefer to work with? ‘The right to livelihood’ or the need to make ‘life easier for the complainant’

Well?

The ‘Sliding Scale’

Disciplinary proceedings against solicitors in the United Kingdom used to divide misconduct into two kinds.  That depended on the severity of the punishment.

If minor misbehaviour meriting a small punishment (e.g. a warning, or a fine), disciplinary tribunals were quite content to allow complainants to prove their complaint on the civil standard.

If the complaint was a serious one e.g. involving deceit or moral turpitude., and if the solicitor was found guilty, he could be banned from ever practising law.

In those cases, solicitors’ disciplinary tribunals needed the complainants to prove their charges a criminal standard.

This principle appears to have been first advanced in the Privy Council case of Bhandari v. Advocates Committee.4 [1956] 3 All ER 742

This came to be called a ‘Sliding Scale’.

That which slides, cannot be trusted

The problem is, any conduct that is considered unethical must cross a very high line.5 Sec . 94(3), Legal Profession Act 1976

For lawyers, ‘misconduct’ requires really bad conduct. It must be:

“Conduct, or omission … which amounts to grave impropriety”.

Do you think ‘grave’ means minor misconduct?

For doctors, the test is no lower.  What is required is ‘serious professional misconduct’.6Sec 24 Medical (Amendment) Act 2012.

One case determined this as conduct considered ‘disgraceful or dishonourable’ by his professional brethren.’7Allison v General Council of Medical Education and Registration [1894] 1 QB 750, CA

So, is ‘serious misconduct’ a small thing?

Since all kinds of misconduct require a high line to be crossed, the Sliding Scale cannot be right.

Back to the old ways

In 1993 an English judge ruled that a disciplinary tribunal should apply the criminal standard of proof.8Re A Solicitor [1993] QB 69

This approach was again reiterated in Aaron v the Law Society [2003] EWHC 2271.

In 2005, the Privy Council in Cambell v Hunt [2005] UKPC 19, agreed with Re A Solicitor.  It emphasised that:

“The standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession…

“Insofar the as the Privy Council in Bhandari v. Advocates Committee (supra) may be thought to have approved some lesser standard, then that decision ought no longer, nearly fifty years on, to be followed.”

There was an attempt to move the standard towards the civil standard.

In 2017, a UK barrister suggested that ‘in public interest’ the standard of proof should [be] a lesser one’.9See Michael Colledge, ‘The Barrister’, August 29, 2017’. See also Sarah Clover and Lisa Jones in ‘Changing Standards – the Standard of Proof in Lawyers’ Disciplinary Proceedings’.

The courts were not so convinced

In 2008 in the UK Supreme Court ruled that the Sliding Scale was

“… a misinterpretation of previous authorities”.10Re B (Children) [2008] UKHL 35

A blot in the landscape

A year later, there was a ripple in the otherwise calm waters of the law.

Remember Richards and Old Man John? The interesting thing about his case is, the disciplinary tribunal that heard complaints against him had found him guilty on a civil standard.

The tribunal “had been wrong in law”, complained Richards, “to apply a civil standard of proof.”  He thought that he should have been judged on the higher, criminal standard.

Had the tribunal done that — he argued —he would not have been found guilty.

The Queen’s Bench declined to hear the argument on the standard of proof.11 supra, paragraph 20

That created a wavelet of uncertainty in the law: but was it a tsunami? It was not.  There the court said that the Tribunal had, in fact, applied the criminal standard.12 Ibid.

That was not strong enough to create even a ruffle in the UK judicial landscape.

The court there still lean towards the criminal standard.

Which brings us back to the question, “What is the current standard?”

As of 2019, the standard of proof for disciplinary proceedings in Malaysia is the criminal standard.13Majlis Peguam Malaysia v. Cecil Wilbert Mohanaraj Abraham [2019] MLJU 265; at paragraph 36.  See also Dinesh Kanavaji a/l Kanawagi & Anor v Ragumaren a/l N Gopal [2018] 9 CLJ 622

So there is no need to hold your breath—the jury is not out on that one, ripple or no ripple.

 

 

 

[The author expresses his gratitude to Ms. KN Geetha, Miss Shalini Ragunath,  Mr. GS Saran, Mr. JP Kirat, Miss. KP Kasturi,  Ms. Thanessha Gunalan and Mr. Devraj Nagarajan for their research.]

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