Disciplinary Tribunals and Related Processes

There are a variety of ways in which discipline can be exercised. Qualified practitio­ners can be referred to a disciplinary tribunal constituted by the profession. There is, as we have seen, some overlap between complaints processes and disciplinary proce­dures in that disciplinary action may arise from a complaint.

⁴⁸ SRA Training Regulations 2011, pt 1: Qualification Regulations, reg 33.1.

⁴⁹ ibid, reg 33.5.

reference by a court or some other authority. It is therefore necessary to deal with disciplinary proceedings as a separate issue.

Professions have, traditionally, operated their own disciplinary tribunals. Practitioners are, typically, judged by their peers. This creates some suspicion of these processes.^[1268] It is important to consider what standards the tribunals are asked to apply. The traditional approach has been for disciplinary tribunals to consider the conduct from the perspective of the profession and its reputation. There are alter­natives. For example, it would be possible for the tribunal to consider whether the behaviour is what the public should expect from a reasonably competent practitioner.

A. The Solicitors’ Disciplinary Tribunal

The Law Society started to deal with discipline in 1888. The Solicitors Disciplinary Tribunal (SDT) was established under the Solicitors Act 1974, section 46. A useful review of practice in the 1990s can be found in a guide by a former President of the SDT.^[1269] Much of this practice is still relevant, despite changes in the constitution of the SDT.

i. Description

a. Constitution

The SDT is currently constituted under the Solicitors Act 1974, section 46.^[1270] The Tribunal previously made its own procedural rules with the consent of the Master of the Rolls.

The SDT is independent of, though funded by, the Law Society with an annual budget of around £3 million per annum.^[1273] It is run by Solicitors Disciplinary Tribunal Administration Limited (SDTA Ltd), a company limited by guarantee controlled by the SDT. The Legal Services Act 2007 (LSA 2007) requires the Tribunal to formulate a budget for each forthcoming year for approval by the LSB. The Law Society is required to pay the specified amount to SDTA Ltd.

b. Board

The Board of SDTA Ltd is made up of the Tribunal’s President, who is chair of the Board, the lay and solicitor vice presidents, a non-executive director and, currently, the immediate past president. Board meetings are held regularly and are attended by the clerk to the Tribunal, who is also company secretary, its operations manager and its finance officer.

c. Membership

The President of the SDT holds office for three years and is elected from solicitor members by a simple majority. One solicitor and one lay vice president are elected from members for a period of three years.^[1274] The solicitor chair and the 21 legal mem­bers of the SDT are appointed by the Master of the Rolls^[1275] and 11 lay members are appointed by the Ministry of Justice. The Tribunal currently consists of 53 members, of whom 34 are solicitor members and 19 are lay members drawn from a variety of backgrounds. Solicitor members cannot also be members of the Council of The Law Society.

The Tribunal is staffed by the clerk, who must be a solicitor or barrister of 10 years’ standing, together with a team of deputy clerks.

ii. Jurisdiction

a. Complainants

Anyone may apply to the Tribunal in relation to an allegation of misconduct unbefit­ting a solicitor, including that arising prior to admission.^[1277] Detailed analysis of cases in 2008 showed that just over 40 per cent resulted from inspections by the Law Society, usually triggered by information received.^[1278] In the next largest category, 23 per cent originated in a complaint lodged by, for example, a member of the public or a fellow solicitor, with a complaints body. The third largest category of cases, nearly 17 per cent, comprised matters referred by an agency like the Law Society. Seven per cent of cases were referred following a criminal conviction, nearly 7 per cent following an audit of the firm and 4 per cent following a ‘tip-off’.^[1279]

Cases are usually brought by the SRA. Only the SRA may make the applica­tion where the issue relates to breaches of the rules. These include rules such as the accounts rules or those relating to practising certificates. Costs can only be awarded in favour of the SRA, so it is usually in the interests of applicants to allow the SRA to take over the conduct of cases. The SDT can adjourn applications made by parties other than the SRA for up to three months to allow an investigation to take place.^[1280]

b. Respondents

An application can be made to the Tribunal in respect of any allegation or complaint made in respect of a solicitor, a recognised body, a registered European lawyer or a registered foreign lawyer.^[1281] A single solicitor member of the SDT decides whether there is a case to answer.^[1282]

Analysis of the 2008 cases showed that over 61 per cent of respondents admitted the allegations brought against them in their entirety.

c. Employees

Applications can also be made by the Law Society for orders against employees of solicitors. If an employee is convicted of a criminal offence the SDT can ban him or her from employment by a solicitor or recognised body.^[1283] It can impose a similar sanction where an employee has been party to an act or default in relation to a legal practice which indicates that it would be undesirable for him to be involved in a legal practice, In such cases, the solicitor, recognised body, or registered European lawyer employing such person may be named as joint respondent.^[1284]

d. Applications for Restoration to the Roll or Termination of Suspension

Solicitors seeking restoration to the roll or termination of a period of suspension may also apply to the SDT.^[1285]

iii. Caseload

In the five SDT sessions reported between 2008 and 2012, the SDT heard an aver­age of around 200 cases a year.^[1286] This represents less than 0.25 per cent of solicitors holding practising certificates,^[1287] and bears little relation to the volume of complaints or the numbers that are upheld. Unfortunately, the annual reports of the SDT do not provide a detailed breakdown of different offences. In 2005-06 over half the cases related to breaches of the Solicitors’ Accounts Rules or the misappropriation of client funds.^[1288]

Analysis of data from the 2008 calendar year showed that, at 13 per cent, Solicitors’ Accounts Rules breaches remained the largest single category.^[1289] The next largest category involved failures surrounding information and advice giving, at nearly 11 per cent.

iv. Procedure

a. Hearings

Applications must be supported by a statement setting out the allegations, the facts and matters in support.^[1291] Three members, including one lay person, constitute a division and sit for each hearing or application.^[1292] Proceedings are usually public, formal and court-like. Procedure is set out in the Rules.

b. Evidence

The Tribunal has powers to compel attendance^[1293] and evidence is given on oath. The Civil Evidence Acts of 1968 and 1995 normally apply to proceedings. This means that the rules of evidence apply unless suspended by the SDT in its discretion.^[1294] Any written evidence can be accepted including statements of witnesses.^[1295]

A respondent is not required to give evidence, but inferences may be drawn from failure to do so. The President of the Queen’s Bench Division recently said, obiter, ‘ordinarily the public would expect a professional man to give an account of his actions’.^[1296] As a result, the SDT issued a practice direction that in future ‘the Tribunal shall be entitled to take into account the position the respondent has decided to adopt as regards the giving of evidence when reaching its findings’.^[1297]

c. Decisions

After a finding that all or any of the allegations in the application have been substanti­ated, a clerk informs the Tribunal of previous disciplinary proceedings where allega­tions were found to have been substantiated against the respondent. Respondents are entitled to make submissions supporting the mitigation of sanctions or costs.^[1298]

p.

a. Burden and Standard of Proof

The burden on the complainant is to prove the charges beyond reasonable doubt, the standard required in criminal proceedings. ^[1299] The Tribunal will not normally reopen any finding of dishonesty already decided in a civil court or proceedings.^[1300]

b. Breach of Rules and ‘Conduct Unbefitting a Solicitor’

The practice of the SDT suggests that there are two categories of case. One category covers breach of rules, either of the code of conduct or of more detailed rules cover­ing specific activity. The second category, covering serious infringements possibly not covered by rules but which violate the spirit of the code, is known as ‘conduct unbefitting a solicitor’. The criteria for unbefitting conduct follow the formula laid down in Re A Solicitor.^[1301] Mere negligence is not enough; conduct must be ‘such as to be regarded as deplorable by his fellows in the profession’ or ‘a serious and reprehensible departure from the proper standards of a solicitor as a professional’.^[1302]

The old Law Society Guide was said to be ‘a Highway Code’ for solicitors,^[1303] but notions of what may constitute ‘unbefitting conduct’ may change. Normally an element of culpability is required but ‘impecuniosity will not excuse failure to discharge a professional liability’.^[1304] Honest and genuine decisions by solicitors on questions of professional conduct do not give rise to a disciplinary offence. If the decision is one no reasonable solicitor could make, then the only conclusion is that the solicitor did not address the issue.^[1305] That is then a disciplinary matter.

vi. Sanctions

The Tribunal has the power to make ‘such order as it thinks fit’, including,

---- striking a solicitor off the roll;

---- suspension from practice indefinitely or for a fixed period;

----- a fine

----- the imposition of conditions on the issue of a practising certificate; exclusion from legal aid work permanently or for a fixed period;

----- the issue of a reprimand; or

----- an order for payment of costs.^[1306]

There is a rough tariff of penalties according to the significance of the offence, with striking of the roll of solicitors, which means they may no longer practise, the most serious.^[1307] It was established in R (on the application of Camacho) v Law Society^[1308] that previous practice, whereby the Tribunal had simply recommended that the Law Society impose conditions on practising certificates, was not adequate or in the public interest. It held that the SDT should impose the conditions and the Law Society had then to enforce them.^[1309]

a. Fines

Under the Solicitor Act 1974 the fine was up to £5,000 for each established allegation. Under 2013 guidance there is no limit to the level of fine. Historically fines were low. In 2002 a fine of £25,000 was exceptional. It was imposed on a solicitor who had written to leaseholders demanding ground rents of £6.50 and threatening forfeiture for the arrears and £250 for his costs. This was considered conduct unbecoming a solicitor by making an improper demand, seeking to take an unfair advantage, sending a misleading letter and seeking irrecoverable costs.^[1310]

b. Striking Off

As with white-collar criminal offences, moral wrongdoing is usually required where striking off the roll is considered.^[1311] This element is usually dishonesty. In Bolton v The Law Society,^[1312] the Court of Appeal noted that the most serious charges against solici­tors involved dishonesty and ‘in such cases the tribunal almost invariably, no matter how strong the mitigation, ordered that the solicitor be struck off’. A solicitor not disclosing to his partners that he had an interest in a claims management company^[1313] was deemed to be dishonesty worthy of striking off. This, it will be noted, involved minimal prejudice to clients or to the public. In that case the court held that all but trivial cases involving dishonesty should lead to striking off.^[1314]

Where no dishonesty was found ‘it remained a matter of very great seriousness in a member of a profession whose reputation depended on trust. A striking off order might, but would not necessarily, follow’. The Tribunal should be concerned funda­mentally to maintain the reputation of the profession as one in which every solicitor can be completely trusted. In addition to dishonesty and accounts offences, solicitors have also been struck off for grossly misleading clients, failing to honour under­takings, failing to comply with court orders and knowingly employing a struck off or suspended solicitor.

vii. Costs

The SDT may make such costs order as it thinks fit.^[1315] Often, the costs incurred are substantially higher than the fines, particularly in contested cases. The courts have indicated that the power to award costs against a regulator should not be used in the absence of proof of dishonesty or lack of good faith. According to Sir Igor Judge, ‘[f] or the Law Society to be exposed to the risk of an adverse costs order simply because properly brought proceedings were unsuccessful might have a chilling effect on the exercise of its regulatory obligations, to the public disadvantage’.^[1316]

viii. Appeals

The SDT’s decisions can be appealed to the Divisional Court of the Queen’s Bench Division or, in the case of applications for restoration to the roll, to the Master of the Rolls. The 2010 Annual Report suggests that, in that year, 16 appeals against the findings of the SDT were heard by the High Court. Of these nine were dismissed, four were allowed, one was partly upheld, one was withdrawn and one was resolved by agreement.

The 2011/12 report shows that 15 cases were appealed during the period of report, many decided by the SDT in previous years. Of these, three were appeals by the SRA. In two of these appeals, Dennison and Rahman, the SRA was successful in having a solicitor struck off on appeal when the SDT had imposed a lesser sanction. In three of the remaining 12 cases, the respondents’ appeals were allowed.

ix. Overview

In relation to the detailed study of the 2008/09 data^[1317] the numbers of respondents was 279, because some cases involved multiple respondents. Of these, the SDT found the allegations wholly substantiated in 77 per cent of cases and partially substantiated in 15 per cent. Once a finding was made, the most common sanction was for a fine and costs to be awarded. Of the sample, around 37 per cent were fined and 94 per cent were held liable for costs. Nearly 2 per cent of charges were found to be wholly unsub­stantiated. Of the remaining caseload, six applications by solicitors, for example, for restoration to the roll, were denied.

With regard to the severest sanctions, 17.2 per cent of respondents were struck off, around 15 per cent were suspended and 18 per cent were reprimanded. Cases of dis­honesty usually led to striking solicitors off the roll, while breaches of the accounting rules involving substantial sums normally results in either striking off or suspension.

The total amount levied as fines has risen more or less consistently. Total fines levied in 2005-06 amounted to £257,500, compared with £433,000 in 2004-05 and £93,000 in 20 03.^[1318] In 2005-06, 64 respondents were fined amounts between £500 and £15,000. In 2011-12, 102 solicitors were subject to orders for payment of fines, ranging from £500 to £30,000. The total levied was £765,000, down from £862,250 the previous year.^[1319] The average fine in 2011-12 was therefore between £7000-8000.

In the five yearly sessions between 2007 and 2012, an average of 66 solicitors were struck from the roll, up to 20 suspended indefinitely and up to 40 were suspended for fixed periods. Between 19 and 49 reprimands were issued each year during the period. In a small number of cases, sometimes less than 10, no sanction is imposed, apart, possibly, from a costs order. These data, with some variations, are reasonably consistent over time. To the extent that there are pattern, the period between 2000 and 2009 showed an increase in the use of fines and reprimands and a slight decrease in numbers struck off, particularly towards the end of the period.

B. Alternatives to Disciplinary Proceedings

i. Regulatory Sanctions

Under the LSA 2007, the SRA was empowered to make findings of breach of regu­latory obligations or professional misconduct, and to impose sanctions, a written rebuke and penalty of up to £2000, without reference of cases to the SDT.^[1320] As a result the SRA Disciplinary Procedure Rules 2011 were adopted after consultation with the SDT and with the approval of the LSB.^[1321] These prescribe processes that overlap with those of the SDT, but without the formality usually attached to a disci­plinary process.

Under the SRA Disciplinary Procedure Rules, sanctions can be imposed in a num­ber of ways. In the first instance, the SRA may agree with a person under investigation that they will accept a penalty. If not, parties duly authorised by the SRA, either a single adjudicator or an adjudication panel, can impose a penalty.^[1322] In considering the matter, the SRA will apply the civil standard of proof (on a balance of probabilities) to decide whether charges are proven.^[1323]

a. Disqualification

The regulated person may be given a written rebuke or directed to pay a penalty. A person can also be disqualified from acting as a HOLP or HOFA, or being a manager or employee of a licensed body referred to the Tribunal.^[1324]

b. Fines

Regulated Persons

The SRA is empowered by the LSA 2007 to impose fines of up to £2000 on solicitors ‘[w]here [it is] satisfied that a firm or individual has failed to comply with the SRA Principles’ without referring the case to the SDT.^[1325] This power does not apply to misconduct occurring wholly before 1 June 2010.

Alternative Business Structures

Regulators that discover breaches of rule while auditing ABS can levy fines on the entity and individuals.^[1326] The SRA, for example, can fine ABSs £250 million and individuals in ABSs up to £50 million. The SRA consultation proposes general criteria for determining the scale of fine imposed. These are:

---- proportionality to the harm done, to the misconduct in question and the means of the paying party;

---- deterrence of repetition of the misconduct by the regulated person and by other regulated persons;

---- elimination of any financial gain or benefit arising from the misconduct;

---- culpability of the regulated person in relation to intentions, recklessness or neglect;

---- aggravating factors, such as failing to correct any harm caused or failing to cooperate with the SRA;

---- mitigation, such as prompt correction of harm caused and preventative action on future problems.^[1327]

It is proposed to operate the criteria alongside a formula producing a baseline figure, probably between 10 per cent and 30 per cent of turnover of the entity being fined. Decisions to impose fines under the ‘traditional’ or the ABS regime are appealable to the SDT. Any fine is payable for the benefit of Her Majesty’s Treasury.

There is obviously a significant inconsistency in the SRA’s powers. It is able to levy fines on law firms of up to £2000 and on ABS up to £250 million. The SRA is con­cerned to eliminate the discrepancy by being able to levy the higher fines on solicitors’ firms as well as on ABS.^[1328]

ii. Regulatory Agreements

Before the introduction of the Disciplinary Procedure Rules 2011 the SRA used regulatory settlement agreements to resolve disciplinary issues direct with firms rather than referring them to the SDT. These are agreements made between the SRA and the individuals. The agreement covers acceptance of the charges and agreement to sanc­tions such as or reprimand and payment of costs. Under the Disciplinary Procedure Rules 2011, the scope of these agreements was extended to cover payments to clients and fines.^[1329] There are two main kinds of regulatory agreement; issue agreements and regulatory settlement agreements.^[1330]

a. Issue Agreements

Issue agreements are intended to resolve a point that arises during the course of an investigation, such as paying compensation to a client, without concluding the investigation.

b. Settlement Agreements

Settlement agreements conclude an investigation in which breaches of rules and regulations are discovered, possibly by imposing terms. Material breach of a Regulatory Settlement Agreement is likely to be treated as professional misconduct.^[1331] The settlement agreement may be published where the SRA considers this to be a proportionate outcome in all the circumstances.

Settlement agreements are in writing and agreed with the solicitor. They state the relevant facts and identify any failings admitted by the solicitor. The solicitor’s admis­sion statement must acknowledge that the statement is made voluntarily and that the statement and agreement will be published by the SRA. The settlement agreement will then identify action the solicitor has taken or has committed to take and any sanction imposed by the agreement. It will be published by the SRA unless the contrary is expressly stated otherwise in the agreement.^[1332]

Solicitors may mitigate offences by identifying and contacting clients or others affected by a failure, by refunding money due to them, reporting periodically to the SRA on the progress of any such action and submitting to monitoring by the SRA.^[1333] Solicitors may be offered quite serious practice controls as part of a settle­ment agreement, such as not engaging in a particular kind of work or closing their firm within a set period.^[1334]

Solicitors may also agree to their removal from the roll without a decision by the SDT providing that they sign an agreement attaching a witness statement, an ‘admis­sion statement’, containing a statement of truth admitting allegations of misconduct and facts relevant to those allegations.^[1335] The statement must also acknowledge any previous disciplinary or regulatory findings. It must acknowledge that serious disciplinary action could be taken by the SDT in the light of the admissions, and request removal from the roll to save costs, distress and further risk to the public.

111

112

113

114

115

116

A solicitor agreeing to removal from the roll under a settlement agreement must undertake not to seek restoration to the roll and not to work for a solicitors’ practice without the written permission of the SRA. He must make full and frank disclosure to any prospective employer of the agreement with the SRA.

C. The Bar Disciplinary Tribunal

In 1988 Abel observed that complaints reaching the Bar Disciplinary Tribunal (BDT) led to disbarment in only 3 per cent and suspension in only one per cent of the total.^[1336] Since that time, numbers of cases heard by the BDT has remained relatively low. Data from a limited sample suggests, however, that the percentage of disbarment and suspension cases has now risen to over 30 per cent of total cases. This may be partly due to the fact that the BDT deals with larger numbers of barristers who are not practising as self-employed.

i. Constitution

Bar disciplinary tribunals are organised by an independent body called the Bar Tribunals and Adjudication Service (BTAS). They are governed by the Disciplinary Tribunal Regulations 2009, which can now be found in the BSB Handbook in Section B of the Enforcement Regulations (Part 5).^[1337]

ii. Membership

The BDT members are selected by Council of Inns of Court (COIC). Each panel consists of either a three-person or a five-person panel. A five-person panel is chaired by a judge, and has two practising barristers and two lay representatives nominated by the President of the Bar. A three-person panel is chaired by a QC or a judge with a lay member and a practising barrister.^[1338]

iii. Respondents

Detailed study of one year of data suggests that 50 per cent of the 73 barristers appearing before the BDT in 2008 were self-employed, while nearly 20 per cent were non-practising, 11 per cent employed and 4 per cent were unregistered barristers. Data was missing in 15 per cent of the 73 cases.^[1339] There was one QC of 40 years’ call, 12 of these years as Silk, in the sample.

iv. Caseload

The 2008 data for barristers was only detailed in relation to the 27 cases which resulted in disbarment or suspension. This is because the Bar’s policy is to remove details of all disciplinary hearings not resulting in disbarment or suspension after two years. The charges leading to these severe sanctions, all involved breaches of the barrister’s Code of Conduct.^[1340] These were categorised as follows:

----- Dishonesty (no 8);

----- DiscreditableZDisreputable conduct (no 7);

----- Practising without a certificateZHolding out as being a practising barrister (no 3); - Failure to complete continuous professional development (CPD) requirements (no 12);

---- Failure to pay an administrative fine, generally relating to CPD infractions (no 11);

----- Failure to respond to a complaint (no 14);

----- Failure to respond to notificationZRequest for information (no 6);

---- Failure to report, for example, bankruptcy, being struck off the solicitors’ roll or a criminal conviction (no 6);

----- Failure to comply with directionsZPay costs (no 3);

----- Breach of pupillage regulations (no 13);

----- Incompetence (during conduct of a trial) (no 1).

This small sample suggests that breach of the CPD rules, including failure to pay a resulting administrative fine, was the most common case in the category treated as serious.

Dishonesty and other discreditable behaviour is the main serious reason barristers appear before the BDT. Though there were 13 offences in connection with pupillage regulations, these related to only three barristers.^[1341] They set up a bogus chambers in order to award pupillage to one of their number, circumventing the pupillage regulations.^[1342]

p. Procedure

Charges are formulated by a barrister appointed by the BSB.^[1343] Defendants are entitled to receive a copy of the evidence of each witness intended to be called in support of the charge or charges, a list of the documents intended to be relied on by the BSB representative, details of any evidence that is still being sought and a state­ment of when it is believed that it will be practicable to supply that evidence to the defendant.^[1344]

A directions hearing is usually held to consider matters such as the need for an oral hearing, applications for separate hearings, applications to sever or strike out charges, attendance of witnesses and provision of the names of all witnesses to be called at the hearing.^[1345]

The Tribunal may still hear evidence from a witness where a statement has not been served provided it is of the opinion that the defendant is not materially prejudiced or on such terms as are necessary to ensure that no such prejudice occurs. The defendant can appear or give a written answer to the charge if he thinks fit.^[1346] He can represent himself or be represented by counsel, with or without the involvement of an instruct­ing solicitor.

The hearing is subject to the rules of natural justice.^[1347] The Tribunal does, however, have discretion to hear any evidence, oral or written, whether direct or hearsay, and whether or not the same would be admissible in a court of law.^[1348] The hearing is normally in public but the Tribunal has discretion to hear a case in private.^[1349]

vi. Criteria

The standard of proof for professional misconduct in Bar Disciplinary Tribunals is the criminal standard of proof.^[1350] If the Tribunal is divided as to the verdict on any charge ‘the burden of proof being on the BSB, the finding recorded on that charge shall be that which is the most favourable to the defendant’.^[1351]

vii. Sanctions

If the charge is found to be proved the main powers of the Tribunal are:

----- disbarment;

----- suspension for a prescribed period or until a condition is met;

----- a fine of up to £15,000;

---- prohibition, either indefinitely or for a prescribed period and either unconditionally or subject to conditions, from accepting or carrying out any public access instructions;

---- order to complete continuing professional development of such nature and duration as the Tribunal shall direct and to provide satisfactory proof of compliance to the Professional Conduct Committee;

---- order to take and pass a professional conduct and ethics test by a stated date, failing which the defendant shall be suspended from practice until such test has been passed;

---- order to attend on a nominated person to be reprimanded or given advice as to his future conduct;

----- a reprimand by the treasurer of the barrister’s Inn or by the Tribunal; and ----- advice from the Tribunal on future conduct.^[1352]

A three-person panel cannot disbar but can refer to a five person panel if necessary.^[1353] There are additional powers to cancel fees arising out of a proceedings relating to a legal aid case.^[1354]

viii. Costs

The Tribunal may make such order as to costs as it thinks fit.^[1355]

ix. Decisions

The reports of decisions, where there is an adverse finding against the respondent, are sent to a variety of persons and bodies, including the Bar Council. The Bar’s disciplinary proceedings have been published since 2002 and new findings are published on the BSB’s website within seven days of a decision.^[1356] Of the 75 cases decided before the BDT in 2008, the imposition of a fine, independently or in conjunction with another order, was the most common finding, followed by reprimands.

In 2008, there were 14 suspensions and 13 disbarments. There was an order of no further action in five cases and advice regarding future conduct in seven. There were 12 findings involving other orders. These included a requirement to attend on head of chambers or Leader of the Circuit (no 2), to pay for or complete continuing profes­sional development (no 4) and to pay outstanding fines (no 4).

x. Appeals

In cases where one or more charges of professional misconduct have been proved, an appeal may be lodged with the Visitors in accordance with the Hearings Before the Visitors Rules 2005.139 The Visitors are High Court judges appointed by the Lord Chief Justice. One or three Visitors will hear the appeal, depending on the issue involved. This may be an appeal against conviction by the defendant and/or an appeal against sentence. Complainants other than the BSB have no right of appeal.^{[1357] [1358]}

xi. Overview

In 2012 a report by the COIC disciplinary tribunals and review group reported ‘systemic failures’ in the administration of the Tribunal system for disciplining bar- risters.^[1359]1 These failings included errors relating to the eligibility of tribunal members and the discovery of potential conflicts of interest. The Tribunal was administered by a single secretary from a small room in a set of chambers. This may have contributed to a detrimental impact on record keeping. The report made 82 recommendations for reform, including the establishment of a COIC Tribunals Service, covering both COIC disciplinary tribunals and the Inns Conduct Committee.

D. Alternative and Complementary Routes to the Bar Disciplinary Tribunal

i. Determination by Consent

Determination by Consent (DBC) is a procedure for dealing with complaints. Barristers’ participation in the DBC process is voluntary. If they do not agree to the DBC process the matter may be referred directly to a Bar Disciplinary Tribunal.^[1360] Complaints subject to the DBC procedure are dealt with by the Professional Conduct Committee (the PCC) of the Bar Standards Board. If the case appears appropriate for the DBC process, a Case Officer of the Investigations and Hearings team will prepare a brief.

On the basis of the paperwork the PCC decides whether there has been a breach of the Code of Conduct and, if so, whether any sentence would be likely to involve suspension or disbarment. The defendant’s case and mitigation, if any, is added to the paperwork. Provided there are no substantial disputes of fact which can only fairly be resolved by oral evidence being taken, the PCC will impose a sentence.

The PCC can impose the following sanctions:

---- a fine of up to £5000 (for acts or omissions prior to 31 March 2009) or up to £15,000 (for acts or omissions that took place on or after 31 March 2009);

----- completion of additional CPD requirements;

----- reprimand;

----- attendance on a nominated person to be reprimanded; and/or

----- advice as to future conduct.

The PCC has no power to award costs.

Barristers give express written consent to continue with DBC at different points in the procedure. A barrister who has agreed to the procedure has a choice of accepting the PCC’s finding, and sentence, or requesting a hearing before the BDT. There are risks in exercising this option; the BDT may suspend or disbar barristers and make orders for costs against them.

ii. The Bar Complaints Committee

The Bar Complaints Committee has complementary and overlapping functions with the Disciplinary Tribunal. It hears complaints from parties other than the BSB and directs cases of professional misconduct to the BDT. It also has additional powers and functions in relation to determining consumer complaints of inadequate profes­sional service.^[1361] From 31 March 2011 the Bar ceased to have any jurisdiction over these complaints. From that date, any complaint made about a barrister by or on behalf of a client is referred without further consideration to the Legal Ombudsman, and the complainant notified of this.^[1362]

There is a residual jurisdiction in relation to non-consumer complaints, for example, those made by a solicitor or another barrister. These continue to be investigated by the Professional Conduct Department under the direction of the PCC.^[1363] The pow­ers of the PCC include reference to the procedures of either the BDT or of DBC.^[1364] It can also refer complaints to a barrister’s chambers,^[1365] or to the barrister’s Inn, Circuit, employer or some other regulatory body, for resolution.^[1366] In suitable cases, the Interim Suspension Rules or the Fitness to Practise Regulations are implemented immediately.

iii. Interim Suspension

The interim suspension rules apply where a barrister is convicted of or charged with an indictable offence. They can also apply if the barrister is sanctioned by an approved regulator for misconduct leading to suspension or termination of the right to practise in an authorised body.^[1367] In such cases the Complaints Committee considers whether to establish a five-person Suspension Panel and the barrister is given notice of a date of hearing within 14 to 21 days.^[1368]

The panel can invite the barrister to undertake to withdraw from practice, and accept no further instructions, pending disposal of the case by a disciplinary tribunal.^[1369] Following a hearing the panel may impose a period of interim suspension or interim prohibition from accepting or carrying out any public access instructions (either unconditionally or subject to conditions). The period of suspension may be up to six months pending the hearing before a Disciplinary Tribunal.^[1370]

No period of interim suspension can be imposed unless the panel considers that it is likely that a Disciplinary Tribunal would impose a sentence of disbarment, or suspension for more than 12 months, for professional misconduct. It must also be in the public interest that the defendant should be suspended. Interim prohibition from accepting public access instructions can be imposed where disbarment, a year’s suspension or prohibition from accepting public access instructions is likely.^[1371]

iv. Declaration of Being Unfit to Practise

The Complaints Committee may request referral to a Medical Panel where circum­stances suggest a barrister may be unfit to practise.^[1372] The Fitness to Practise Regulations potentially apply to barristers suffering from serious incapacity. Such incapacity must be due to a mental or physical condition, including addiction, that seriously impairs fitness to practise. Suspension, or the imposition of conditions, must be necessary to protect the public.^[1373]

Medical Panels consist of five members nominated by the President. They include a chair and two other barristers of at least seven years’ call. The chair and at least one other barrister must be Queen's Counsel. The panel must also include a medical expert and a lay representative.^[1374] At the conclusion of a preliminary hearing the panel may give directions for a full hearing. The directions may include provision for examination of the barrister by an appointed medical adviser. The direction may include disclosure of medical records. Adverse inferences may be drawn from refusal to provide such records.

The Medical Panel may direct that the barrister be suspended from practice or prohibited from accepting or carrying out any public access instructions, either unconditionally or subject to conditions, for a specified period or indefinitely.¹⁵⁷ Other than in exceptional circumstances the period should not exceed three months. In lieu of imposing a period of suspension or prohibition the panel may accept a barrister’s written undertaking. The undertaking may include a promise to suspend his practice, or not to accept or carry out any public access instructions, pending the conclusion of the full hearing.¹⁵⁸

E. Planned Adjustments to Bar Disciplinary Processes

The Bar’s new regulatory regime is in force from January 2014. The intention is to resolve more regulatory issues through supervision and monitoring and to promote compliance by use of administrative sanctions. Disciplinary proceedings will be reserved for those cases where an administrative sanction is not severe enough or where the public interest requires a formal process. The BSB will broaden the grounds for interim suspension and introduce the immediate suspension in exceptional cases. It will expand the rules on determination by consent, disciplinary tribunals and interim suspension to cover businesses as well as individuals. There will be an increase in the level of fines available to the BDT for breaches of the Handbook.

VII.