Barristers are increasingly instructing “fairly litigious” solicitors and other counsel to defend them in disciplinary proceedings, but to little effect, the Bar Standards Board (BSB) has said.
The increased involvement of the Bar Mutual Indemnity Fund (BMIF) in disciplinary cases has resulted in an increase in the number of defendant barristers instructing solicitors and counsel on a fee-paying basis, according to the annual report of the BSB’s professional conduct department.
Nonetheless, the BSB was successful in 91% of cases referred for disciplinary action in 2010, up from 76% just two years earlier.
While more representation of defendants was “broadly to be welcomed”, the report said it was creating additional work for the BSB “that is not necessarily warranted by the nature of the cases”.
It added: “This has caused some parts of disciplinary work to become more akin to contested litigation. The solicitors used by BMIF are proving to be fairly litigious, resulting in a disproportionate amount of time being spent dealing with solicitors’ correspondence and challenges to the process. The statistics regarding the BSB’s success in proving disciplinary charges demonstrate that these challenges are rarely successful.”
Figures in the report show that the three main causes of disciplinary action last year were failing to respond promptly to a complaint, failing to complete CPD, and failing to pay a non-disciplinary fine (for example, failing to complete CPD initially attracts a £300 administrative fine).
Meanwhile, the report revealed a massive jump in the number of complaints about dishonesty or discreditable conduct by barristers, from 10 in 2009 to 72 in 2010 – after incompetence (which is now a matter for the Legal Ombudsman), this was the most common type of complaint.
The report said: “Complaints in this category reflect potential breaches of paragraph 301(a) of the code and mostly relate to allegations about barristers’ behaviour outside their capacity as lawyers, for example in their private life or in an employed role unconnected with the provision of legal services.”
In all the BSB dealt with 682 complaints in 2010, a 6.4% drop on 2009 that was entirely attributable to the Legal Ombudsman opening in October and taking over all service complaints; without this, the number would almost certainly have gone up.
Finally, the BSB is to consider paying retired High Court judges to help clear a backlog in appeals against Bar Disciplinary Tribunal decisions.
Appeals are made to the Visitors to the Inns of Court, a separate jurisdiction to the court system which involves High Court judges sitting with lay and barrister members (the judges taking on the status of “Visitors” rather than sitting officially as judges). It has been accepted that this is an anachronism and should be replaced with appeals to the High Court, but there is no sign of the necessary legislation to effect it being introduced.
In 2010, 29 appeals were submitted, compared to 17 in 2009, but just eight have been heard in the past two years. Currently there are 32 appeals outstanding, the highest for five years.
The report said: “The problem lies in the fact the Visitors jurisdiction is not part of the standard work of the courts and therefore needs to be ‘tagged on’ to the High Court schedules, which are increasingly under pressure. The time taken by High Court judges to consider and hear appeals is funded through the court system and not by the Bar Council/BSB. Therefore it is not surprising that allocation of time for disciplinary tribunal appeals takes a low priority in relation to other High Court work.”
Sara Down, the BSB’s head of professional conduct, told last week’s board meeting that the only way to deal with the backlog was to pay retired judges to sit, at a cost of around £1,000 a day. This would have to be done at arm’s length through the Ministry of Justice as the BSB is the prosecuting authority.