LeO to review internal guidelines after barrister cleared of misconduct

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21 August 2014

Adam Sampson

Sampson: general approach that information shared between all parties

The Legal Ombudsman has announced that it will be reviewing its internal guidance after a barrister was cleared of misconduct because LeO failed to share information.

“Our general approach to investigating complaints is to share evidence with all parties concerned and we try to do this at the earliest appropriate opportunity”, chief ombudsman Adam Sampson said.

“The outcome of this tribunal reaffirms the importance of doing so and we will therefore revisit our internal guidance to make sure that any decisions we make about sharing evidence and when to do so are fair in the circumstances of each case.

“In this case the tribunal accepted that the lawyer failed to provide all reasonable assistance to the Legal Ombudsman and in doing so breached his own code of conduct. In that respect our decision to refer the matter to the lawyer’s professional body was correct.”

Julian Smith, based at Lincoln Inn’s Fields Chambers, rejected a request from LeO to forward evidence relating to a complaint against him from a family law client on the grounds that LeO was refusing to share its evidence until its investigation was over and the findings had been issued.

The Bar disciplinary tribunal said Mr Smith was in breach of the Bar code of conduct but it did not constitute professional misconduct. The tribunal said it understood why, in the circumstances, “a barrister in the position of Mr Smith would feel that he was justified in not co-operating with the investigation”.

Mr Sampson said LeO welcomed the tribunal’s observations on evidence-sharing and the the lawyer’s failure to provide reasonable assistance with the investigation.

“We believe that the decision provides an opportunity for the Ombudsman and members of the legal profession to learn how we can better work together to resolve complaints.”

LeO referred the matter to the Bar Standards Board (BSB), which brought the charges at the tribunal.

A spokesman for the BSB said: “The panel found that Mr Smith had, in fact, breached the code of conduct, and that it was in the public interest for the BSB to refer this breach to an independent tribunal, but ultimately the panel ruled that the breach was not grave enough to be considered professional misconduct.”

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3 Responses to “LeO to review internal guidelines after barrister cleared of misconduct”

  1. The simple fact is that this barrister should never have been charged with such a trivial and contrived offence. The BSB, in particular, emerges from this looking like a supine servant of LeO – rather than defending the integrity of the profession, and the difficult job we do.

  2. David Eades on August 22nd, 2014 at 10:14 am
  3. I am Mr Smith’s Practice Manager and Clerk and can tell you that this case raises further important issues for the regulation and defence of barristers.

    LeO needs to go much further in cleaning-up its act. Had it anything like a competent and objective complaints system this matter would never have reached the BSB. Mr Smith complained to LeO about natural justice requiring full disclosure, only to be told that such principles did not apply to the running of its complaints procedure which was not adversarial. It was on this basis that the BTAS tribunal acquitted Mr Smith from the charge of misconduct for not in turn providing full disclosure. Having decided it did not need Mr Smith’s cooperation, LeO then gratuitously and vindictively reported Mr Smith to the BSB for non-cooperation and while his complaint about the matter was still outstanding. Leo’s final injustices were to make an informal finding against Mr Smith, which could only be appealed at the risk of a formal finding; for LeO to make a formal finding against Mr Smith notwithstanding his acceptance of the informal finding, and suggesting a financial irregularity on Mr Smith’s part; to advise the BSB incorrectly that Mr Smith had refused to pay its penalty; and for its in-house lawyer to tell Mr Smith that it would not withdraw its formal finding against Mr Smith on the grounds it was too late for him to judicially review it.

    All this background was very carefully put to the BSB by Mr Smith. Thereafter the BSB worked very closely with LeO to assist LeO make its case further. Mr Smith again rebutted all the points made. Indeed, the BSB’s Professional Conduct Committee’s (PCC’s) own sponsor or investigator recommended to the PCC that no further action be taken, it transpired on disclosure from the BSB. Why the PCC reached this decision is unknown. The members of the PCC, who consider themselves fit to adjudicate on the professional conduct of their fellow barristers, consider that they do not have to give reasons for their decisions. They don’t even keep minutes. Finally, had there not been an unscheduled adjournment of Mr Smith’s hearing, during which LeO’s obligation to give full disclosure of a complaint became apparent, Mr Smith would almost certainly have been convicted. Even with this evidence to hand and with the BSB having no reasonable prospect of success, the hearing continued with Mr Smith even being finally cross-examined.

    There is also something deeply wrong when despite this Mr Smith was not awarded his substantial costs, and when despite Mr Smith’s acquittal from a charge of misconduct it can still be said by the BSB that he was nevertheless in breach of the Code of Conduct.

    It beggars belief that those who practise English law are subjected to and tolerate a regulatory framework which is so poor that a case like this can arise.

  4. Sue Young on August 22nd, 2014 at 11:23 am
  5. I made these points several days ago, and they have not been denied by LeO and the BSB. This tells all relevant parties all they need to know. I now call for an enquiry into this issue.

  6. Sue Young on August 28th, 2014 at 12:48 am

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