The Future of Professional Discipline
As in most areas of lawyers’ work, the LSA 2007 has put in motion processes that call into question the traditional approach to professional discipline. There is potential for a turf war between the approved regulators and the disciplinary tribunals.
These are constituted separately from regulators but typically receive cases prepared by them and hear appeals from their decisions on imposing regulatory sanctions.As regulators expand their regulatory powers, the role of, and necessity for, the disciplinary tribunals will be called into question. It is possible that, in future, approved regulators could exercise all the powers currently exercised by disciplinary tribunals. A safety net would be provided by a right of appeal, either to an appeals tribunal or a court. An alternative would be for regulators to use a more limited range of sanctions and leave serious cases of misconduct to criminal courts. In this way, issues over using different standards of proof would be avoided.
181 Abel (n 2) ch 8.
182 A Boon and A Whyte, ‘Icarus Falls: The Coal Health Scandal’ (2012) 15(2) Legal Ethics 277.
If, as seems likely, some role for formal disciplinary proceedings is retained, there will continue to be tension between tribunals and regulators exercising similar disciplinary powers. This may be resolved or mitigated by the allocation of clear spheres of responsibility. Even so, further thought will need to be given to whether existing sanctions are effective, and when. It may also be desirable to consider the role of alternative disciplinary mechanisms, for example, apologies, in the disciplinary armoury.183
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