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Tax barristers should report colleagues who break rules, Davies says

Dr Vanessa Davies [1]

Dr Davies: new requirement for barristers to report misconduct by colleagues

Tax barristers who have evidence of colleagues breaking the rules should report it to the Bar Standards Board (BSB), chief executive Dr Vanessa Davies has said.

She was responding to a blog by Professor Richard Moorhead [2], director of the Centre for Ethics and Law at UCL, London, following a claim by a leading tax junior that QCs were regularly giving deliberately misleading advice.

Professor Moorhead said counsel’s opinions were “not well policed by relying on the lawyer’s obligations to the clients or current ethical rules”.

Referring to an opinion linked to the accounting treatment of Lehman Brothers, he went on: “Opinions are supposed to be neutral documents but lawyers and sophisticated clients can easily turn them towards being advocacy documents, with varying degrees of subtlety and risk. Sometimes this has disastrous results.”

Professor Moorhead said the Bar’s code of conduct was “not as well set up as the SRA’s code for transactional work”, but barristers must not breach core duties to act with honesty and integrity, maintain independence and not behave in a way likely to diminish trust and public confidence.

The academic added that it “may of course be the case that the Bar Standards Board are already investigating such complaints”, in which case it should say so.

In response, Dr Davies said the BSB Handbook, which came into force on 6 January 2014, contained a new requirement for barristers to report serious misconduct by themselves or others.

“Any barrister who genuinely believes that they have evidence of colleagues breaching the code should report it to the Bar Standards Board so we can consider whether enforcement action is necessary.”

The claims were made last month by Jolyon Maugham, a leading tax junior at Devereux Chambers. He complained in his “Waiting for Godot” blog [3] that a “prominent QC” had given tax advice in which he expressed a view on the law “so far removed from legal reality that I do not believe he can genuinely hold the view he says he has”.

Mr Maugham said: “At best he is incompetent. But at worst, he is criminally fraudulent: he is obtaining his fee by deception. And this is not the first such opinion I have seen. Such pass my desk all the time.”

Mr Maugham said the QC was one of “slightly less than half a dozen”, who he described as “The Boys Who Won’t Say No”, before adding that “we all know who they are”.

He suggested one solution would be impose on tax barristers the obligation imposed on advisers in the US that their advice must not be based on unreasonable factual or legal assumptions or unreasonably rely upon representations by the client or others, and must consider all relevant facts and law.