Standard of proof: Barristers warned against “defensive lawyering”


BSB: April 2019 implementation

It would be “extremely disappointing” if barristers became more defensive in their behaviour as a result of lowering the standard of proof for disciplinary matters, the Bar Standards Board (BSB) has said.

It said adopting the civil standard was in the public interest, and there were no “clear or legitimate justification for barristers being treated differently from other professions”.

“Nor do we consider the profession is uniquely vulnerable to unfounded complaints,” the BSB said in its application to the Legal Services Board for approval to make the change, which was agreed last November.

The Legal Services Board supports the civil standard, and the change is likely to take effect from April 2019.

This would leave the Solicitors Disciplinary Tribunal out of step with the legal and other professions by retaining the criminal standard, although it too is consulting on adopting the civil standard.

The BSB application acknowledged that the move to the civil standard may lead to more barristers being sanctioned for breaches of its Handbook.

It said: “Many of those against a change expressed strong concerns about the potential negative impacts on the behaviour of some sections of the Bar that could flow from a change as a direct consequence of the potential increased exposure to unfounded complaints.

“Views were expressed that these negative impacts would act against the effective administration of justice and against the public interest and therefore represent a reason for maintaining the criminal standard.

“Such detriment could arise from barristers taking a more defensive, risk-averse and over-protective approach to dealing with both clients and opponents, particularly litigants in person.

“Further examples of such behavioural changes included: reduced compliance with the cab rank rule; reduced willingness to take on public access work; a reluctance to engage with clients or litigants in person; and, a reduction in those willing to enter publicly funded areas of practice.”

The Bar Council told the BSB that these issues could have a “chilling effect” on those already practising at the publicly funded Bar, as well as those contemplating a career in such areas.

However, the regulator said the checks and balances in the complaints and disciplinary system weeded out unfounded complaints.

Given that, “it would be extremely disappointing if a profession that prides itself on its integrity and relies on its reputation, were to react to a change in the standard of proof by making such significant behavioural changes”.

The BSB went on to warn that some of these possible behavioural changes would amount to breaches of the BSB Handbook.

“Therefore, rather than acting to reduce potential exposure to disciplinary action flowing from a change to the standard of proof, we are of the view that they are more likely to increase that exposure.”

On the other hand, it said, the possible increase in disciplinary matters further supported “the view that a change to the standard of proof will better protect the public”.

It explained: “Many of those who supported a change also referred, with varying degrees of concern, to their view that it was unjustifiable that a barrister could escape sanction where a tribunal was satisfied that it was more likely than not that misconduct had occurred.”

The BSB said barristers were no different “to the individuals who are exposed to the potentially devastating consequences of decisions taken in a range of civil proceedings in the courts…

“Clients of barristers, particularly those working at the family Bar, are exposed to devastating and life changing decisions taken on the civil standard.

“However, if their barrister is accused of serious breaches of their professional obligations, they are currently afforded the higher protection of the criminal standard.”




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