Barrister who overturned disbarment at Court of Appeal is disbarred again

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13 June 2016


BSB

BSB: actions “incompatible with membership of the Bar”

A barrister who overturned his disbarment at the Court of Appeal last year has been disbarred again.

Damian McCarthy was found by a Bar disciplinary tribunal to have forged client care letters, after a direct access client complained.

A Bar disciplinary tribunal ruled last week that Mr McCarthy had “engaged in conduct in pursuit of his profession which was dishonest or otherwise discreditable to a barrister”, contrary to the code of conduct.

The tribunal found that in June 2009, “in response to a request by the BSB [Bar Standards Board] for documentation relevant to its investigation into a complaint against Mr McCarthy by his lay client, he sent the BSB four client care letters which he falsely asserted were sent to his lay client in compliance with the requirements of paragraph 6 of the public access rules when he knew the same were recent creations which had not been sent to his client in advance of the work being carried out as was required by the rules”.

The tribunal also found that Mr McCarthy had “accepted public access instructions and supplied legal services for reward on behalf of a lay client without promptly sending her a written communication”, in breach of the public access rules and the code of conduct.

The tribunal ruled that Mr McCarthy should be disbarred – a decision open to appeal.

Sara Jagger, director of professional conduct at the BSB, said: “It is regrettable that a second tribunal has had to take place, but it has again been found that Mr McCarthy provided false client letters as part of an investigation by his regulator.

“Such actions are clearly incompatible with membership of the Bar, and it is right that the independent tribunal again decided to disbar.”

Mr McCarthy told Legal Futures he would wait for the written ruling before deciding whether to appeal.

“I’m obviously disappointed with the decision. It does not reflect what happened and was an odd judgment in many ways – but I don’t want to comment further until my lawyers have advised.”

Quashing the original decision to disbar Mr McCarthy, in January 2015 Lord Justice Burnett strongly criticised a BSB official for “subverting the rules” on disclosure.

Burnett LJ said a “conscious decision” was taken by an official “which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution”.

However, the Visitors to the Inns of Court ruled in August 2015 that there was “no basis” for saying that Mr McCarthy, who launched the judicial review after he was disbarred in 2011, would be deprived of a fair hearing “by reason of delay and/or any prior knowledge” of BSB witnesses if the case was reheard.

 

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