Breach of ethical duties

Question 1

Complaints to the BSB

Answer 1

• The Independent Decision Making Body (IDB) of the BSB investigates and resolves complaints from members of the public and legal profession against barristers
• The IDB consists of 40 decision makers: 17 barristers, 23 members of the public who are not barristers or solicitors
• Decisions on individual cases are taken by smaller panels of 3-5 decision makers. The majority of members are not legally qualified.

Question 2

Stages of the process

Answer 2

(1) Initial assessment of the complaint or allegation
(2) If appropriate, formal investigation
(3) Decision by Investigations and Enforcement Team or IDB
(4) Administrative sanction by IDB or refer to Disciplinary Tribunal

Question 3

Credibility and seriousness of the allegation

Answer 3

• Initial assessment carried out by the BSB’s Contact and Assessment Team
• If a formal assessment is warranted, it will be carried out by the Investigations and Enforcement Team. It usually takes around 6 months for a decision to be made either to:
  (a) dismiss the allegation
  (b) take enforcement action (IET can only impose administrative sanctions e.g. a written warning or fine up to £1,000)
  (c) refer the allegation to a panel of the IDB, which might impose an administrative sanction or if it is more serious, refer it to the Disciplinary Tribunal or the ‘determination by consent’ procedure

Question 4

Determination by consent procedure

Answer 4

• Voluntary; only happens if the barrister agrees
• an Independent Decision Making Panel will look at the papers to see if the rules of the BSB Handbook have been broken
• if it finds that they have, it will decide what sanctions to give, and the barrister will have the opportunity to accept or reject the judgment and sanction

Question 5

Determination by consent possible penalties

Answer 5

(a) order the barrister to pay a fine
(b) reprimand
(c) advice
(d) order to complete further training

Question 6

BSB Disciplinary Tribunal

Answer 6

• Cases of very serious breaches of conduct rules, or if the barrister does not agree to the consent procedure, are passed on to the Bar Tribunals and Adjudication Service
• Process similar to judicial proceedings, with witnesses giving evidence to the tribunal
• The tribunal needs to conclude that the evidence shows rules or duties were broken beyond reasonable doubt (if the conduct was before 1 April 2019)
• after April 2019, the tribunal needs to conclude evidence shows rules or duties were broken on the balance of probabilities

Question 7

Tribunal penalties

Answer 7

(a) Disbarment
(b) Suspension from practice
(c) Order that barrister’s practising certificate should not be used
(d) A fine of up to £50,000

The most onerous penalties can only be imposed by a 5 member tribunal