6. You and your regulator Flashcards
What are the relevant outcomes for you and your regulator?
oC21
BSB regulated persons are effectively regulated.
oC22
The public have confidence in the proper regulation of persons regulated by the Bar Standards Board.
oC23
The Bar Standards Board has the information that it needs in order to be able to assess risks and regulate effectively and in accordance with the regulatory objectives.
What information must you provide to the BSB?
You must:
.1 promptly provide all such information to the Bar Standards Board as it may, for the purpose of its regulatory functions, from time to time require of you, and notify it of any material changes to that information;
.2 comply in due time with any decision or sentence imposed by the Bar Standards Board, a Disciplinary Tribunal, the High Court, the First Tier Tribunal, an interim panel, a review panel, an appeal panel, an Independent Decision-Making Panel or a Fitness to Practise Panel;
.3 if you are a BSB entity or an owner or manager of a BSB entity and the conditions outlined in rS113.5 apply, give the Bar Standards Board whatever co-operation is necessary:
.4 comply with any notice sent by the Bar Standards Board or its agent; and
.5 register within 28 days if you undertake work in the Youth Court if you did not register when applying for a practising certificate.
Your obligations under this rule include, for example, responding promptly to any request from the Bar Standards Board for comments or information relating to any matter whether or not the matter relates to you, or to another BSB regulated person or unregistered barrister.
Will documents relevant to a production notice be required to be disclosed if they are legally privileged.
Yes.
The documents that you are required to disclose pursuant to Rule C64 may include client information that is subject to legal professional privilege. Pursuant to R (Morgan Grenfell & Co Ltd) v Special Commissioner [2003] 1 A.C. 563, referred to in R (Lumsdon) v Legal Services Board [2014] EWHC 28 (Admin) at [73], the BSB is entitled to serve you with a notice for production of those documents.
Where you are required to report serious misconduct, must you provide legally privileged documents?
Where you are being required to report serious misconduct by others and legal professional privilege applies, this will override the requirement to report serious misconduct by another.
However, the BSB may subsequently serve you with a notice for production of documents in which case you will be
If you are served a production notice from the BSB, do you need to give documents which are subject to your own legal privilege?
No.
This could include legal advice given to you about your own position during a BSB investigation.
What must you report to the BSB promptly?
1 you are charged with an indictable offence; in the jurisdiction of England and Wales or with a criminal offence of comparable seriousness in any other jurisdiction;
.2 subject to the Rehabilitation of Offenders Act 1974 (as amended) you are convicted of, or accept a caution, for any criminal offence, in any jurisdiction, other than a minor criminal offence (unless it is immediately spent);
.3 you (or an entity of which you are a manager) to your knowledge are the subject of any disciplinary or other regulatory or enforcement action by another Approved Regulator or other regulator, including being the subject of disciplinary proceedings;
.4 you are a manager of a regulated entity (other than a BSB entity) which is the subject of an intervention by the approved regulator of that body;
.5 you are a registered European lawyer and:
.a to your knowledge any investigation into your conduct is commenced by your home regulator; or
.b any finding of professional misconduct is made by your home regulator; or
.c your authorisation in your home state to pursue professional activities under your home professional title is withdrawn or suspended; or
.d you are charged with a disciplinary offence.
.6 any of the following occur:
.a bankruptcy proceedings are initiated in respect of or against you;
.b director’s disqualification proceedings are initiated against you;
.c a bankruptcy order or director’s disqualification order is made against you;
.d you have made a composition or arrangement with, or granted a trust deed for, your creditors;
.e winding up proceedings are initiated in respect of or against you;
.f you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you;
.g administration proceedings are initiated in respect of or against you;
.7 you have committed serious misconduct;
.8 you become authorised to practise by another approved regulator.
What should you do where you commit serious misconduct?
In circumstances where you have committed serious misconduct you should take all reasonable steps to mitigate the effects of such serious misconduct.
Must you report serious misconduct from others?
Subject to your duty to keep the affairs of each client confidential and subject also to Rules rC67 and rC68, you must report to the Bar Standards Board if you have reasonable grounds to believe that there has been serious misconduct by a barrister or a registered European lawyer, a BSB entity, manager of a BSB entity or an authorised (non-BSB) individual who is working as a manager or an employee of a BSB entity.
Can you threaten to report/report someone without a genuine and reasonably held belief that they have committed misconduct?
You must never make, or threaten to make, a report under Rule rC66 without a genuine and reasonably held belief that Rule rC66 applies.
When are you not under a duty to report serious misconduct?
You are not under a duty to report serious misconduct by others if:
.1 you become aware of the facts giving rise to the belief that there has serious misconduct from matters that are in the public domain and the circumstances are such that you reasonably consider it likely that the facts will have come to the attention of the Bar Standards Board; or
.2 you are aware that the person that committed the serious misconduct has already reported the serious misconduct to the Bar Standards Board; or
.3 the information or documents which led to you becoming aware of that other person’s serious misconduct are subject to legal professional privilege; or
.4 you become aware of such serious misconduct as a result of your work on a Bar Council advice line.
Can you victimise someone for making a good faith report for serious misconduct?
No!
What could serious misconduct include?
.1 dishonesty (CD3);
.2 assault or harassment (CD3 and/or CD5 and/or CD8);
.3 seeking to gain access without consent to instructions or other confidential information relating to the opposing party’s case (CD3 and/or CD5); or
.4 seeking to gain access without consent to confidential information relating to another member of chambers, member of staff or pupil (CD3 and/or CD5);
.5 encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3);
.6 knowingly or recklessly misleading, or attempting to mislead, the court or an opponent (CD1 and/ or CD3); or
.7 being drunk or under the influence of drugs in court (CD2 and/or CD7); or
.8 failure to report promptly to the Bar Standards Board pursuant to rC65.1-rC65.5 and/or rC66 above or if;
- director’s disqualification proceedings are initiated against you;
- a director’s disqualification order is made against you;
- winding up proceedings are initiated in respect of or against you;
- you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you;
- administration proceedings are initiated in respect of or against you;
.9 a breach of rC67 above; for example, reporting, or threatening to report, another person as a litigation tactic or otherwise abusively; or merely to please a client or any other person or otherwise for an improper motive;
.10 conduct that poses a serious risk to the public.
What should you consider first when you believe ther may have been serious misconduct?
If you believe (or suspect) that there has been serious misconduct, then the first step is to carefully consider all of the circumstances. The circumstances include:
.1 whether that person’s instructions or other confidential matters might have a bearing on the assessment of their conduct;
.2 whether that person has been offered an opportunity to explain their conduct, and if not, why not;
.3 any explanation which has been or could be offered for that person’s conduct;
.4 whether the matter has been raised, or will be raised, in the litigation in which it occurred, and if not, why not.
When does the duty to report serious misconduct arise?
Having considered all of the circumstances, the duty to report arises if you have reasonable grounds to believe there has been serious misconduct. This will be so where, having given due consideration to the circumstances, including the matters identified at Guidance gC97, you have material before you which as it stands establishes a reasonably credible case of serious misconduct. Your duty under Rule rC66 is then to report the potential instance of serious misconduct so that the Bar Standards Board can investigate whether or not there has in fact been misconduct.
What should you do where you discover misconduct which falls short of serious misconduct?
Misconduct which falls short of serious misconduct should, where applicable, be reported to your HOLP so that they can keep a record of non-compliance in accordance with Rule rC96.4.
