19 November 2010Print This Post

“Out of step” Bar throws spanner into workings of ABS disciplinary regime

Co-operation: different standards of proof could make it difficult

The Bar is “out of step” with fellow regulators over its operation of the criminal standard of proof in its disciplinary tribunal, a Bar Standards Board meeting in London was told yesterday.

The criticism was made as the board discussed signing a memorandum of understanding to clarify the roles of legal and non-legal regulators under the alternative business structures (ABS) regime after October 2011, and the admissibility of each other’s disciplinary findings.

Meanwhile, the board also argued about the strength of the disciplinary sanction for failing to meet continuing professional development (CPD) requirements.

BSB lay member Dr Vicki Harris, who sits on the disciplinary bodies of the Institute of Legal Executives and Association of Chartered Certified Accountants, said she was concerned that that “the Bar is out of step with almost every other regulator in requiring the criminal standard of proof.” She added: “I think it is not to our credit.”

Recommending that the BSB sign the memorandum, Charles Hollander QC said that while he was “deeply sceptical’ as to its value because it is non-binding, it could nevertheless be a “useful tool” to refer back to in the event of non-compliance.

In October, the BSB’s standards committee also raised the question of the disparity between the Bar’s disciplinary tribunal’s operation of the criminal standard while other regulators apply a civil standard.

The controversial paragraph in the memorandum relates to agreement that the formal findings of other regulators should be admissible in the proceedings of recipient regulators as evidence of the facts found.

Patricia Robertson QC, a member of the board’s ABS working group, said the issue of the criminal standard should be addressed before the BSB is “effectively made to look at it by a set of circumstances that cause us real live problems on the ground”. She warned that the BSB could find itself in an “extremely problematic” situation if the BSB found itself faced with having to decide a matter involving findings that were made on a different standard of proof.

The board agreed to sign the memorandum. Once signed by all regulators it will be sent to the Legal Services Board for approval and although not legally binding, the LSB will deem it to be a necessary part of a licensing authority’s licensing arrangements.

Meanwhile, at the board meeting Sue Carr QC, chairman of the BSB’s complaints committee, expressed her disappointment that the Legal Ombudsman was not sharing information freely on complaints against barristers.

She said the LeO was not providing sufficient access to its complaints-handling process and that she had “the impression still that we are very far off their radar”. She warned that it could be three or four months before the board would receive an accurate report as to how complaints are being dealt with by LeO.

Also at the meeting, a topic that provoked heated debate was the question of sanctions for barristers who fail to complete CPD hours. The issue arose in relations to proposals for new authorisation to practice arrangements, which the BSB consulted on earlier this year.

It emerged that the standards committee divided along lay member/barrister member lines over whether failure to comply with CPD requirements should result in a refusal to renew a practising certificate. Barrister members argued this would be disproportionate and failure should lead only to disciplinary action, as now. Lay members said non-compliance should lead to the issue of a temporary certificate to practise until the CPD shortfall was remedied.

The board was also unable to reach a consensus, except it agreed that a first offence of failure to comply with CPD should not result in the immediate loss of the right to practice. A range of options will now be presented to the board in December.


By Legal Futures

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