Conclusion

The machinery of professional discipline, whether internally or externally imposed, traditionally serves several purposes in securing compliance. It provides an exclusion mechanism for those who are a menace to the integrity of the profession, a deter­rence mechanism for those who might be tempted to transgress and assurance to members of the profession that their mutual commitment to ethics is taken seriously.

Sir David Clementi’s review of the legal services market directed no criticism at disciplinary tribunals, to which he proposed virtually no changes.¹⁸⁴ This is remark­able given the range and depth of his criticism, for example, of complaints procedures. Clementi may not, however, have anticipated the consequential changes the enact­ment of his proposals would have on the institutions of the profession. Professional discipline is one of the areas experiencing the stresses and strains of a new system. Disciplinary tribunals deal with relatively small numbers of extreme cases, but they play an important symbolic role.

There are several points of tension between the traditional and new systems of compliance operated by the legal professional regulators. The SDT is under pressure from the SRA to adopt the civil standard of proof, the balance of probabilities, which is what the SRA now applies in exercising its new powers of regulatory sanction. Grossly different levels of fine operate as sanctions, depending on different regulators and kinds of organisation. There is a possibility of forum shopping between different regulators for the best regulatory terms. It is ironic that Clementi considered the old system a confusing maze.

¹⁸³ F Bartlett, ‘The Role of Apologies in Professional Discipline’ (2011) 14(1) Legal Ethics 49.

¹⁸⁴ DCA, The Future of Legal Services: Putting Consumers First (Cm 6679, 2005).