11. Regulation of non-professional conduct Flashcards
What are the general principls relating to regulation of non-professional conduct?
General Principles
14. Barristers are central to the effective operation of the legal system, and it is important
that our regulation serves to maintain public trust and confidence in them as individual
practitioners, and in the profession as a whole.
- While barristers cannot be held to unreasonably high standards and are not to be
viewed as “paragons of virtue”, barristers are nevertheless held to a higher standard of
conduct than ordinary members of the public. - Members of the public must feel able to access an independent, strong, diverse, and
effective profession. This means we have an important role in ensuring that any
member of the profession, whether practising or unregistered, acts in a way that
maintains public trust and confidence in the profession. - When a barrister’s conduct in their non-professional life is incompatible with the high
standards the public expects of them, we may take regulatory action in the public
interest. This approach has long been recognised by the courts - The case law is clear that the closer non-professional conduct is to professional
practice, the greater the justification for regulatory action is likely to be. We are of the
view that the closer any non-professional conduct is to a barrister’s professional
activities, workplace or relationships and/or the more it reflects how they might behave
in a professional context, the more likely we are to have a regulatory interest in it.
4However, we may also have a regulatory interest where the nature of the conduct is so
serious that it is capable of diminishing public trust and confidence in the barrister or the
profession, regardless of the context and environment.
- We are unlikely to have a regulatory interest where we receive information about
conduct in a barrister’s personal/private life which has little or no impact on their
professional practice, or on public trust and confidence in the profession.
Are chambers’ socials regarded as part of a barrister’s profesional life?
Yes.
The term “practising” is broadly defined in the BSB Handbook. It means all activities,
including the business-related activities, of a practising barrister. This means that
chambers-related events, for example, are likely to be treated as being part of a
barrister’s professional life,
6 so conduct during such events engages all the Core Duties
and rules that apply to practising barristers.
What parts of the handbook apply to all barristers at all times?
Core Duty 5 (CD5)
You must not behave in a way which is likely to diminish the trust and confidence which
the public places in you or in the profession.
Rule C8 (rC8)
You must not do anything which could reasonably be seen by the public to undermine
your honesty, integrity (CD3) and independence (CD4).
What is the relevance of potential criminal conduct to the BSB?
- When considering whether we have a regulatory interest in non-professional conduct,
the first question we will ask is:
Has the barrister been:
a. Charged with an indictable offence in England and Wales;
b. Charged with a criminal offence of comparable seriousness elsewhere; or
c. Convicted of, or accepted a caution for, any criminal offence other than a
minor criminal offence7
(subject to the Rehabilitation of Offenders Act 1974 (as
amended))?
- A barrister could be the subject of criminal charges and ultimately a criminal conviction
(or caution). Such charges, cautions or convictions may arise from their nonprofessional life (for example, a conviction for drink driving or harassment in a domestic
context), but they could also be associated with their professional life (for example,
convictions for a failure to pay tax or VAT in relation to their practice). - It is not our role to make a finding as to whether a barrister has committed a criminal
offence; this is the responsibility of the criminal justice system. However, we take the
view that it is incompatible with the high standards expected of the profession for
barristers to engage in criminal conduct. This is because we consider it to be important
that all barristers, both practising and unregistered, are (and are seen to be) ruleabiding citizens in order to maintain public trust and confidence in them and in the
profession. Engaging in criminal conduct is likely to be inconsistent with CD5 and rC8. - Barristers have a duty to report promptly certain types of criminal conduct (but not
“minor criminal offences”) to us by virtue of rC65.1 and rC65.2 of the BSB Handbook.
This obligation applies at all times to both practising and unregistered barristers. The
first question we will ask (above) when deciding whether we have a regulatory interest
in a barrister’s non-professional conduct therefore reflects this duty to self-report. A
failure to report promptly is, in itself, a breach of the BSB Handbook that could attract
enforcement action. - However, the fact that we may have a regulatory interest in a charge for an indictable
offence does not mean we will necessarily take regulatory action prior to a conviction.
What action we do take will depend on all the circumstances of the case, including the
nature of the alleged offence, the barrister’s area of practice, and the risk posed. - There may be circumstances where barristers engage in conduct which could constitute
a criminal offence but, for various reasons, the conduct is not reported to the police, or it
has been reported but the barrister has not been charged or criminal conduct is not
proved. We may nevertheless have a regulatory interest in such conduct, but it will be
considered in line with the principles applicable to “other conduct”
What questions will the BSB ask themselves where the non-professional conduct is not criminal?
Other conduct
32. If the conduct reported to us does not fall within the scope of the principles relating to
criminal conduct above, then when considering whether we have a regulatory interest in
relation to any other conduct, the second question we will ask is:
Is the conduct sufficiently relevant or connected to the practice or standing of the
profession such that:
a. it is likely to diminish public trust and confidence in the barrister or the
profession; and/or
b. it could reasonably be seen by the public to undermine the barrister’s
honesty, integrity or independence?
In determining whether the conduct is sufficiently relevant or connected to the practice or standing of the profession, we will take into account:
i. the nature of the alleged conduct; and
ii. the context and environment in which the conduct is said to have
occurred.
- This is a question that requires careful assessment according to the particular facts and
circumstances of each case. It is not possible to set a firm line between the types of
conduct in which we will or will not have a regulatory interest.
How does the nature of non-professional conduct factor in what action the BSB may take?
- When considering the nature of the conduct, we will look at what the barrister has
allegedly done and its impact on the relevant Core Duties and Conduct Rules in the BSB
Handbook. A non-exhaustive list of the types of conduct which are likely to be treated as
a breach of CD5 is set out in gC25 (in Part 2 of the BSB Handbook). We may have a
regulatory interest in this conduct, even if it occurs in a non-professional context, and this
includes conduct which is seriously offensive
towards others or conduct which is
dishonest, discriminatory, victimising or harassing. - We may have a regulatory interest in conduct which is discriminatory, for example,
because conduct which demonstrates a barrister’s attitude towards people from certain
groups (particularly minoritised and/or vulnerable groups) might indicate how they will interact with people from that group in the future, including how they may provide legal
services to them. Such conduct might also alienate clients, future clients, and members
of the public who identify as members of that group. This may make them feel uncertain
about engaging with the barrister and/or the profession or trusting that the barrister
and/or the profession will act in their best interests. This could be seen as a risk to
access to justice, and it is therefore likely to be in the public interest to regulate such
conduct.
How does the context and environment of non-professional conduct factor in BSB enforcement?
- The closer the link between the context and/or environment in which the conduct
occurred and that of the profession, the greater the likelihood that we will have a
regulatory interest in it. - This means, for example, that conduct by a barrister involved in private litigation may
well be of regulatory interest to us if, for example, a barrister engages in vexatious
behaviour that wastes the court’s time or fails to comply with court orders. - Whilst the ability to identify somebody as a barrister is not a necessary ingredient for us
to have a regulatory interest in non-professional conduct, it is likely to strengthen the link
between the conduct and the profession. This is because, by virtue of being identifiable
as a barrister, there may be a greater risk of the conduct diminishing public trust and
confidence in the barrister or in the profession. This is also likely to include situations in
which a barrister uses their status as a barrister to obtain an advantage or to the
detriment of others. - However, we may also have a regulatory interest in conduct that is so serious that it is
capable of diminishing public trust and confidence in the barrister or the profession,
regardless of the context and environment, for example, discrimination.
