Reporting Professional Misconduct

Reporting Professional Misconduct

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Introduction

1. It is essential within a system of self-regulation, such as that operated at the Bar, that barristers recognise the important role that they play in ensuring that the profession conducts itself in the public interest and in a manner that is not discreditable, disreputable or dishonest.

2. The Bar Standards Board (BSB) is reliant on its members and members of the public to contact them if they are concerned about a barrister's conduct, ability to practise competently or if they are aware that a barrister has been convicted of a serious criminal offence.

Conduct That Should Be Reported

3. The categories of conduct that we believe barristers should report can be separated into two discrete areas:

• What is in the public interest to be reported
• What is in the best interests of the reputation of the profession to be reported

4. In both of these categories the misconduct, incapacity or offence to be reported must be serious and of the sort which, if proved, would suggest to the public that the individual ought not to continue to be permitted to practise as a barrister offering advice to the public and might justify a sentence of disbarment or suspension from practise from a Disciplinary Tribunal. Barristers are not expected to report every minor offence or breach of the Code

The "Public Interest" category

5. This category can be further sub-divided into the following areas:
• Unfit to practise

6. This is defined in Annex O of the Code as meaning that:

"(a) the barrister is suffering from serious incapacity due to his mental or physical condition (including any addiction); and

(b) as a result the barrister's fitness to practise is seriously impaired."

7. The BSB accepts that barristers are not usually medically trained, but in our view this is not necessary when deciding whether in their opinion a barrister is fit to practise. The crucial question is whether, by reason of incapacity, the ability to appear in court, advise clients or to make judgements in the client's interests is impaired. Such an assessment is something that any barrister could reasonably be expected to undertake. If the answer to the question is yes, for the protection of the public, the barrister ought to be reported to the BSB.
• Gross Incompetence

8. We would expect a report to be made under this category only in relation to an act, or series of acts, which seriously calls into question whether a barrister is competent to practise or offer legal services to the public of the standard expected by the profession. It is not necessary to report all acts of negligence or poor service, however the cumulative effect of a number of such acts might be sufficient to suggest that a barrister is not competent. The assessment of conduct within this category is very much subjective in nature, barristers who are unsure whether to make a report can contact the BSB to discuss the issues on a confidential and anonymous basis.

The "Reputation of the Profession" category

9. This category can be sub-divided into the following areas:
• Indictable Offence

10. Paragraph 905(b) of the Code of Conduct requires barristers to report to the Bar Council if they have been charged with an indictable criminal offence of if they have been convicted of any relevant criminal offence.

11. We would only expect a report to be made if a member of the Bar believes on reasonable grounds that another barrister has been convicted of a serious criminal offence but had not reported it to the BSB. If you are uncertain whether a barrister has reported his/her conviction you should contact the BSB who will have a record of the convictions reported to it.
• Disreputable Conduct

12. This applies to conduct in the course of a barrister's practice whether in self employed or employed practice The following are examples of the kind of conduct that we believe should be brought to the attention of the BSB:-
Disreputable conduct within Chambers/ place of work

13. Conduct which constitutes an indictable offence, eg.:

(a) theft from another member of Chambers or staff or pupil, or any visitor to Chambers;
(b) assault on another member of Chambers or staff or pupil, or any visitor to Chambers

14. Dishonest or deceitful conduct towards other members of Chambers or staff or pupils, eg:
(a) Seeking to gain access without consent to papers or confidential information relating to a case in which a member of Chambers is instructed on the other side;
(b) Seeking to gain access without consent to information confidential to another member of Chambers or pupil in relation to his practice or his personal affairs (except in appropriate circumstances by a pupil supervisor in relation to a pupil).

15. In all such cases arising in self-employed practice, the person who would usually be expected to report the matter to the BSB is the Head of Chambers or the person or Committee within Chambers which has responsibility for the proper administration of Chambers or for investigating the matter in the first instance. However, if a barrister with knowledge of the conduct in question is aware that the Head of Chambers or other responsible person has failed to report the matter to the BSB, the barrister with such knowledge should bring the matter to the attention of the BSB.

16. For those cases arising in employed practice, barristers may wish to discuss the matter with their Head of Department or line manager before deciding who should make the report.

Disreputable conduct in relation to court proceedings

17. The BSB recognises that barristers cannot reasonably be expected to police the conduct of their opponents in the course of adversarial litigation. However, the profession has a duty to ensure that cases are presented fairly and honourably, so that justice can properly be done. In most cases, the Court will be able to make use of its own powers to control its procedures and to ensure that cases are properly presented. Misconduct in the face of the Court will usually be apparent to the Judge, and in such cases, it is expected that the Judge hearing the matter will bring the misconduct in question to the attention of the BSB. However, there are some instances in which misconduct by a barrister may not come to the attention of the Court. In addition, there are other instances in which the misconduct in question so fundamentally undermines the proper and fair administration of justice that members of the profession are expected to ensure that it is brought to the attention of the BSB. The following are examples of such misconduct:

(a) Dishonest or disreputable conduct, such as:
• Seeking to gain access without consent to instructions or other confidential information relating to the opposing party's case;
• Encouraging a witness to give evidence with is untruthful;
• Misleading or allowing the Court or opponent to be misled.
(b) Being drunk or under the influence of drugs at Court.

Racial or Sexual Discrimination/Harassment

18. This is an extremely sensitive area and one in which victims can be reluctant to come forward themselves. We do not advocate that a report that a colleague has committed an act of racial or sexual discrimination or harassment should be made without first discussing the matter with the victim , who may have strong views that a report should not be made, however we would stress that conduct that falls within this category is wholly unacceptable and should be reported wherever possible. The BSB will of course offer support and assistance to the victim if a report is made.

19. It may well be the case that Chambers will be considering the matter through their own procedures and in those circumstances we would not expect a report to be made to the BSB unless it is deemed necessary following Chambers' investigation of the allegation.

Issues to take into consideration before making a report

20. Before making any report to the BSB, members of the Bar should give careful consideration to the following:
• Evidence

21. What evidence or information is there of the barrister's conduct conviction or fitness to practise which causes a report to be made. A belief based on gossip or hearsay would not be sufficient. For the Bar Council to take the report forward they will need prima facie evidence either in the form of documents or witness statements.

22. If there is in any doubt before making a report as to whether it is justified, it is open to barristers to make additional investigations and to contact the barrister concerned for an explanation,
• Privilege/confidentiality

23. Barristers should not breach their own duties of privilege or confidentiality in reporting misconduct without the client's consent. They must take into account the law of privilege and before reporting members of the bar on the other side of a case for what may appear to be dishonesty or gross incompetence should ensure that they have prima facie evidence to support it. Consideration should also be given to the comments made by the House of Lords in the case of Medcalf v Mardell [2002] 3 All ER 721 about the dangers of making assumptions on apparently damning facts without first having heard the full story.

24. When deciding whether a report should be made, it may be useful to look at the provisions of the Code of Conduct to see whether the conduct causing the report seems to fall within any particular rule. This is not, of course, an exact science but it might be helpful in determining whether a report is appropriate or necessary.

25. Reports of serious misconduct, or allegations of unfitness to practise, that are made out of malice, or without supporting evidence, may be considered by the Complaints Committee actually themselves to amount to professional misconduct. Barristers should, therefore, if they are in any doubt, contact the Complaints Team at the BSB to discuss the possible report on a confidential and anonymous basis.

What action the BSB will take if a report is made

26. The action taken by the BSB will depend on the nature of the allegation and the evidence contained in the report. In all cases, the matter will be referred either to the Complaints Commissioner or to the Chairman of the Complaints Committee for instructions. As guidance, the following action is likely to be taken:

27. Where a report advises that a barrister has been convicted of a serious criminal offence the BSB is likely to institute proceedings under the Interim Suspension Rules (see Annex N to the Code of Conduct) and will also consider disciplinary action.

28. If the evidence suggests that the barrister is unfit to practise, the BSB is likely to institute proceedings under the Fitness to Practise Rules (see Annex O of the Code of Conduct). It is important to note, however, that these proceedings do not amount to disciplinary proceedings and are intended to provide support for a barrister to deal with his or her problems so that disciplinary proceedings are avoided. The main aim of the Fitness to Practise Rules is to protect the public but it is also a means of protecting the profession as it removes from individual barristers and their chambers the burden of deciding whether they are fit to practise and places it upon the BSB.

29. In other cases the BSB is likely to raise a complaint against the barrister concerned or to seek their comments prior to raising any complaint.

30. If a complaint is raised, the BSB may require the assistance of the barrister making the report in supplying witness statements and/or attending at any Tribunal proceedings that may follow.

Reporting the matter to the Bar Standards Board

31. Should a barrister wish to make a report to the BSB they should write to the Complaints Section, 289-293 High Holborn, London, WC1V 7HZ, enclosing any evidence that they have in support of their report. Barristers should therefore, if they are in any doubt, contact the Complaints Team at the BSB to discuss the possible report on a confidential and anonymous basis.

Conclusion

32. The Bar functions on a system based on trust and confidence between colleagues and the Bar Council and the BSB would not wish to suggest anything that might put this in jeopardy. There is however a need to ensure that the profession continues to operate at the high standard it has historically maintained. The role that self-regulation plays in achieving this is essential and, in order for the BSB to effectively police the profession, assistance from members of the Bar is encouraged. Our net does not extend wide enough to be able to uncover every instance of serious misconduct, incompetence or unfitness to practise. Barristers have a responsibility to uphold the reputation of the profession and we would urge them strongly therefore to bring to our attention anything that might call this into question.

First issued: October 2005

Last reviewed: February 2009

Standards Committee:

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