The rules, the latest version of which is from 2019, provide a framework for the investigation and disposal of complaints against advocates. Existing Rule 9 gives the advocate “the benefit of any reasonable doubt” whereas the proposed Rule 5 states that the standard “is to be the balance of probabilities”.

The society’s concern mirrors that which it has already articulated in relation to the proposal by the Scottish Solicitors’ Discipline Tribunal that its standard of proof be similarly lowered. Further, for reasons of consistency a dilution of the protection of advocates may weaken the case that the SSDT should retain the higher standard in relation to solicitors.

Andrew Stevenson, secretary of SLAS said: “Our system of justice requires that lawyers represent clients without fear of being subjected to frivolous or malicious complaints. The SSDT is a quasi-criminal forum where a fiscal prosecutes and where solicitors face a sentence of a fine if found guilty. Safeguards are necessary where careers and livelihoods can be wrecked. 

“In the 2005 Privy Council case of Campbell v Hamlet (Trinidad and Tobago) 2005, a bench which included Lord Hope and Baroness Hale had “no doubt” that the criminal standard is appropriate where there are allegations of misconduct against professional people. This requirement still applies in other jurisdictions; Campbell was cited and the higher standard of proof was applied in a case determined by the Disciplinary Committee of the General Legal Council of Jamaica only last year.

“We are unable to discern any good reason why solicitors and advocates in Scotland should be deprived of the reasonable protection afforded by the higher standard of proof. Vague references to transparency, accountability and consumer confidence are no substitute for a cogent explanation.”

The consultation closes on 18 September.