McGowan: Barristers must not be fallible in their honesty
It was “clearly inappropriate” for a Bar disciplinary tribunal to suspend a barrister who lied to a direct access client over papers that were accidentally destroyed by his chambers, the High Court has ruled.
Mrs Justice McGowan said that Stephen Taylor’s lie – that the file may be at his home, when he knew it was not – was serious misconduct but one that could be marked sufficiently by a fine and at least a day of in-person public access training.
Mr Taylor, who was called in 2002, had advised the client at a conference that his position on a rating dispute was unarguable. The client asked for the return of the papers but Mr Taylor could not find them.
He told the client that they were likely to be at home and would be returned in due course, but later admitted he knew he had not taken them home.
It took three months for Mr Taylor to tell the client that his papers could not be found and must have been disposed of in the chambers’ confidential waste disposal system. The fee was returned to the client and a full apology provided.
In suspending him and ordering the training last year, the tribunal said it was concerned that Mr Taylor had “sat” on the lie, while the effect of the disposal of the documents was that the client could not seek a second opinion.
On appeal against sanction, McGowan J said: “With all due respect to the panel for their carefully reasoned decision, I do find that the sanction they reached was clearly inappropriate in the circumstances of this case. It was disproportionate.”
While panel was correct to start by considering disbarment and then move on to suspension, “it would then have been appropriate to reflect further, and to consider whether all the requirements of the imposition of sanction and the duty to protect public trust and confidence in the profession could not have been met by the combined effect of the requirement to complete further professional development training and a financial penalty to mark the seriousness of any act of dishonesty by a barrister”.
This was not a lie told for personal gain “in any real sense”, the judge said. “It was not a lie about the case, or the proceedings and it was clearly spontaneous.
“However, I do not find it to be without real significance and do not accept the submissions that this is at the lowest end, not simply of dishonest conduct but of misconduct generally.”
While barristers were “occasionally fallible” in their advice, their performance and “possibly” even their judgment, the judge said, “they must not be fallible in their honesty”.
She accepted, as did the panel, that this was “lower in the scale of deliberate lies told in such a professional relationship”. Whilst Mr Taylor “simply had not understood how seriously this would be perceived, he fully realises that now”.
In assessing the fine, McGowan J said the financial consequences of the six-month suspension would have been in excess of £100,000, half of Mr Taylor’s annual turnover.
She placed the breach in the category of serious conduct not meriting suspension – for which the tribunal’s sanctions guidance recommends a fine of £15,000 to £50,000 – and imposed a fine of £25,000, taking into account Mr Taylor’s admissions.
She also retained the requirement to complete further professional development training.
Barrister Marc Beaumont represented Mr Taylor.
Disgraceful. A lie is a lie not measurable by perceived consequences – a lie is a lie measured by the consequences – surely at the very least. What was the value of the “claim” sakd barristers client suffered that then bad no evidence to proceed? I say again a lie that has consequences- measurable is bad enough for making out a lie that could affect that measurable loss but even if the barrister would say it hadn’t forseen consequences it is irrelevant that he can’t work. He should not – he told a lie