INVESTIGATING BARRISTERS – TRAPS AND TIPS
3.1 Some barristers tend to come out fighting. But this is precisely the wrong way to go about responding to a BSB complaint. Moreover, many barristers will be up to capacity, or beyond it, with professional commitments. So the temptation not only to be aggressive, but perfunctory, is often irresistible. Other barristers suffer another extreme reaction to complaints: they fall apart completely and appear over-willing to fall on their proverbial sword for no good reason.
3.2 The Bar equips barristers from a young age with almost complete independence of thought and action. This too is the wrong mindset for an effective response to complaints. Its reverse side is both self-importance and a tendency to play the victim card – both unattractive traits in a respondent to a complaint. Modesty and measured detachment are the name of the game, but such a tone is often hard to attain without professional draftsmanship.
3.3 The perfect response to a complaint is thus, in the author’s view, beyond the majority of barristers to formulate alone, because the traits that stand them in such good stead as advocates and champions of the causes of their clients – assertiveness, celerity and opinionated thinking, become handicaps. What is required is time, reflection, thoughtfulness, patience and the wisdom of an objective adviser.
3.4 Unfortunately, most barristers have no access to independent legal advice unless they can obtain it pro bono. PII with BMIF only provides cover for advice and the drafting of responses to complaints where the complaint is made by a client who may have a parallel negligence claim. BMIF exercises a discretion in other cases. The exercise of that discretion, which is usually exercised against providing cover, can be challenged before the Financial Services Ombudsman, but such proceedings are ponderous. Many barristers are unable to fund legal advice on their own for the length of an entire case, whilst the Bar Standards Board has comparatively limitless funds. The current position is indefensible as it plays straight into the BSB’s hands by giving it grossly unfair tactical, financial and psychological advantages.
3.5. The machinery of investigation within the BSB is set out at rE12 et seq. The investigation, unlike any future trial, is confidential: rE63. Any limitation period, formerly as low as 6 months, has been abolished, leaving the Bar apparently potentially exposed to complaints of great antiquity about which memory may have long since faded and papers may have long since been destroyed. As time passes, this change is likely to prove to be a cause of great injustice if and to the extent that the BSB ignores a protest that it is impossible to answer a complaint due to the effluxion of time.
3.6 Assessment is in light of the “regulatory objectives” of the Legal Services Act 2007, which are: 1. protecting and promoting the public interest; 2. supporting the constitutional principles of the rule of law; 3. improving access to justice; 4. protecting and promoting the interests of consumers; 5. promoting competition in the provision of legal services; 6. encouraging an independent, strong, diverse and effective legal profession; 7. increasing public understanding of the citizen’s legal rights and duties; and 8. promoting and maintaining adherence to the following professional principles: a that authorised persons act with independence and integrity; b that authorised persons maintain proper standards of work; c that authorised persons act in the best interests of their clients; d that authorised persons comply with their duty to the court to act with independence in the interests of justice; and e that the affairs of clients are kept confidential.
3.7 The BSB case officer, often not legally qualified, will carry out a “risk assessment”. This is a tick-box proforma. It may well categorise even the most experienced practitioner as “high risk”, given the nature of the allegation made, an entry made in reference to a barrister’s reputation with his regulator as to which he or she has had no opportunity to make any representations at all. A copy of this document should be sought in all cases and if it is wrong, it should be challenged. Its conclusion may be very wounding indeed.
3.8 The case officer will summarise the complaint and send that summary to the barrister under investigation for his response. This is a matter of obligation: rE15. All correspondence with the complainant should be obtained if it is not provided and the BSB asked to confirm that its summary of the complaint is the last word in the matter, so that the goalposts cannot be moved later on in the investigation.
3.9 The response to the summarised complaints should be measured, although there will always be exceptions to this sound rule of thumb. A complaint brought by another barrister may call for a more rigorous response and a different style. As stated above, it ought to be drafted by specialist disciplinary law counsel. It must engage with the issues and only the issues. Background should be relevant and not prolix. The response document may well be produced at the tribunal as evidence and so should be entirely consistent with the barrister’s true account of events. Poor drafting may prove to be unexpectedly costly later at trial.
3.10. The response is sent to the complainant for comment. It is rare for those comments materially to alter the complexion of the case by this stage. However, sometimes excessive indulgence is shown for complainants and this should be resisted. They should not be permitted to recast their cases once the complaint has been summarised and answered by the barrister.
3.11 The response and comments on it are sent to a Case Examiner, formerly known, a little oddly, as a ‘sponsor’ barrister. He or she produces a report summarising the facts, analysing the issues, suggesting an outcome and, if appropriate, drafting outline charges. The name of the Case Examiner is known only to the relevant staff and members within the BSB. It was stated by the BSB in one case that this is to prevent disgruntled people from attacking the Case Examiner, a curious argument which does not explain why Disciplinary Tribunals (or even judges) are not anonymised. More worryingly, this lack of transparency means that there is no way for the barrister under investigation to determine if the Case Examiner might be conflicted, even unwittingly and in an objective sense, or if in some way the doctrine of apparent bias may operate. A Case Examiner barrister who acts for the accused barrister X’s frequent litigation adversary, would not be the right person to be seen to be making recommendations about the disposal of a serious complaint against X. This has actually happened. This is not obviously the kind of public service that commands such secrecy and is in contrast to the opportunity for challenge to panel members that is afforded at a full trial.
3.12 The report is discussed in a committee, now called an “Independent Decision-Making Body” or “IDB”, but until 2019, the PCC (Professional Conduct Committee). In many cases, but not all, the committee follows the outcome proposed by the Case Examiner. One criticism of this procedure has been that the case papers, including the barrister’s response to the complaint, including a response which may, on occasion, have been professionally drafted at some expense, are not read by the committee members in advance of the committee meeting, or at all. The case papers are not even copied for each committee member, but one bundle is available in the room for anyone who may wish to read it. It is thought that nobody usually does so. So the accuracy and comprehensiveness of the report of the Case Examiner is critical because it is usually the only document read by the other decision-makers.
3.13 If not provided, disclosure of that report should be sought in every case, at least to ensure that it was accurate when laid before the committee. The report used to be withheld altogether and, after several challenges,1 changes were gradually made by the BSB, resulting first in partial disclosure of the report and, later, in the current position, whereby the report is disclosable in full. It can be a valuable resource.
3.14 The committee meeting is attended by the Case Officer. He or she takes notes. It is denied by the BSB that these are minutes properly so-called. But they should still be sought in every case. The BSB may strain not to provide them. So in most cases there will be no evidence of any discussion whatsoever, giving the impression that the Case Examiner’s report is both the beginning and the end of any rational thought about the issues. If it is deficient – and some are deficient – or if it is jaundiced – and some are a little sarcastic, or even palpably dismissive of the barrister’s explanation, without any forensic basis for being so, the barrister concerned may well become subject unjustly to public disciplinary proceedings.
3.15 A decision to prosecute is, in principle, susceptible to judicial review. This was tacitly accepted in JR v BSB  EWCA Civ 320. In that case, the concern of JR (against whom all Charges were eventually withdrawn), was that the ‘sponsor’ report failed accurately to set out the true context of his discussions with the opposition advocate. So, in principle, if a Case Examiner’s report has significantly misled the IDB, judicial review would lie (at least) to compel a freshly constituted IDB to consider a fresh Case Examiner’s report.
3.16 The committee reaches a decision as to dismissal of the complaint, or whether to refer the matter to a Tribunal, whether 5-person or 3-person, or as to whether, say, to proffer advice. In doing so, it applies a two-fold test: (1) is there is a realistic prospect of a finding of ‘professional misconduct’ being made and (2) having regard to the regulatory objectives, is it in the public interest to pursue disciplinary action? Test (1) is understood to be determined on the civil standard even in cases where the criminal standard still applies.
3.17 In moving to a new system with a smaller decision-making committee, it remains to be seen whether the problems above will be eliminated or compounded. Presumably, a smaller committee can more readily be furnished with all of the case papers and so will not need to be so reliant on the work of one person. And a smaller group can more readily minute its necessarily shorter discussions.
3.18 A possible outcome short of referral to a Tribunal is an “administrative sanction” under rE19. This could be a fine of up to £1,000 for an individual, or £1,500 for a BSB entity, or a warning or fixed penalty. After Re P, a barrister  1 WLR 3019, where it was held that an appeal panel could not lawfully include a serving PCC member, the Bar Council’s PCC (the BSB’s microcosmic precursor), had to disband its so-called summary panels. These were committees of three PCC members, who would conduct an inquisitorial process, held in private, at the end of which they had the power to reprimand a barrister. The illegality of that process, conceived before Article 6 of the ECHR was enacted into UK law by the Human Rights Act 1998, was that the Bar Council played investigator, prosecutor, judge and jury. As “judge”, it was obviously not “independent” within Article 6.
3.19 By way of the “administrative sanction” procedure, the BSB has introduced something resembling the Bar Council’s anachronistic and illegal summary panels. It is impossible to see how any sanction imposed by the BSB itself, thereby acting as investigator, prosecutor and judge, can be lawful. The availability of an appeal to an independent panel under rE54 et seq is a public lawyer’s answer to this criticism, but at the point of investigation and imposition of the administrative sanction, the obvious illegality is not counteracted. The legality of a procedure for barristers should not depend on them having to appeal in every case.
3.20 It is not possible to understand how, given the Re P embargo in r.E144 on disciplinary decision-makers being concurrent Bar Council or BSB officers or advocates, that can be circumvented by the simple expedient of removing decision-making about internally imposed sanctions to the BSB’s PCC, or to the PCC in its reincarnation, of the “Independent Decision-Making Body” and/or its staff, and away from the BTAS tribunals. The BSB labelling a BSB committee “Independent”, does not make it independent of the BSB, although the nomenclature clearly recognises the legal obligation to try to achieve independence. From what the “Independent Decision-Making Body” is meant to be independent is far from clear. If it is intended that this new body is the Bar’s Crown Prosecution Service, whilst the case officers are the Bar’s Police, then rather more than a mere change of name would be required to achieve substantive independence.
3.21 The author’s written submissions to the above effect in J v BSB (2017) resulted in these remarks being made by the panel:
“…the Appeal Panel recognised that as an approved regulator, the BSB should have robust regulations and procedures enabling it to impose administrative sanctions without the risk of unnecessary challenge on procedural or natural justice grounds. It therefore observed (but without making any findings in that regard) that the BSB might wish to re-consider the processes and operation of the Administrative Sanction procedure; in particular the applicability of the common law to the processing of a complaint up to and before a decision is made to lay a charge with reference to the principles set out in the case of In re P (a Barrister)  1 WLR 3019.”