CD9 - You must be OPEN and CO-OPERATIVE with your Regulator Flashcards
CD 9
You must be OPEN and CO-OPERATIVE with your REGULATOR
When do you need to report yourself to the BSB?
Hopefully never.
Rule: RC65
You must report promptly to the BSB if:
(i) You are CHARGED with an INDICTABLE OFFENCE in England and Wales or with a criminal offence of comparable seriousness in any other jurisdiction;
(ii) You are CONVICTED of or CAUTIONED for ANY criminal offence in any jurisdiction other than a minor offence (see footnote 7)
GC94.1
(1) You are not obliged to disclose SPENT convictions under this rule, BUT you cannot wait until a conviction becomes spent to avoid disclosing it to the BSB. Therefore, unless the conviction is immediately spent you must declare it to the BSB upon being sentenced.
(2) The SPENT convictions rule does not apply when you are asked a question related to:
[a] your SUITABILITY FOR ADMISSION to the profession, AND you are told that spent convictions are to be disclosed; or
[b] the DISMISSAL or EXCLUSION of any person from the profession.
(iii) You have committed SERIOUS MISCONDUCT; (See 6.4. below for a non-exhaustive list of examples of ‘serious misconduct’)
(iv) You become the subject of any DISCIPLINARY or other REGULATORY or ENFORCEMENT action by another regulator;
(v) Any of the following occur:
(1) BANKRUPTCY proceedings are initiated against you;
(2) DIRECTORS DISQUALIFICATION proceedings are initiated against you;
(3) You have made a composition or arrangement with your creditors;
(4) WINDING UP proceedings are initiated in respect of against you;
(5) An administrator, administrative receiver, receiver or liquidator is appointed in respect of you;
(6) ADMINISTRATION PROCEEDINGS are initiated in respect of you;
(vi) You become authorised to practice by another approved regulator.
What about spent convictions?
gC94.1
Must report to BSB if:
You are CONVICTED of or CAUTIONED for ANY criminal offence in any jurisdiction other than a minor offence (see footnote 7)
(1) You are not obliged to disclose SPENT convictions under this rule, BUT you cannot wait until a conviction becomes spent to avoid disclosing it to the BSB. Therefore, unless the conviction is immediately spent you must declare it to the BSB upon being sentenced.
(2) The SPENT convictions rule does not apply when you are asked a question related to:
[a] your SUITABILITY FOR ADMISSION to the profession, AND you are told that spent convictions are to be disclosed; or
[b] the DISMISSAL or EXCLUSION of any person from the profession.
What do you have to have before you report another barrister?
… balls and GENUINE AND REASONABLY HELD BELIEF
rC67
Reporting another Barrister to the BSB
(a) You must never make or threaten to make a report of serious misconduct to the BSB about another barrister WITHOUT A GENUINE AND REASONABLY HELD BELIEF that there has been serious misconduct by that barrister.
gC96
Examples might include reporting or threatening to report a barrister as a litigation tactic or merely to please a client or any other person.
What other core duty relates to reporting another barrister? i.e. CD 9 and CD ? =
rC66
Subject to the rule above and your duty under CD 6, you MUST report to the BSB if you have reasonable grounds to believe that there has been SERIOUS MISCONDUCT by a barrister.
What amounts to SERIOUS MISCONDUCT?
gC96
SERIOUS MISCONDUCT includes:
(1) DISHONESTY;
(2) ASSAULT or HARASSMENT;
(3) Seeking to gain ACCESS without consent to CONFIDENTIAL INFORMATION relating to the opposing party’s case (including instructions);
(4) Seeking to gain access without consent to confidential information relating to another member of chambers, member of staff or pupil;
(5) Encouraging a witness to give evidence which is UNTRUTHFUL or MISLEADING;
(6) Knowingly or recklessly MISLEADING THE COURT or an opponent (or any attempt to do so);
(7) Being DRUNK or under the influence of DRUGS in court;
(8) Failure by a barrister to report promptly to the BSB under the rules in paragraph 1(a)(v) above;
(9) Conduct that poses a SERIOUS RISK TO THE PUBLIC;
[a] Depending on its severity, DISCRIMINATION can constitute serious misconduct.
What should you do before making the report?
gC97
Before making a report you should carefully consider all of the circumstances including:
(i) Whether the barrister’s INSTRUCTIONS OR OTHER CONFIDENTIAL MATTERS might have a bearing on the assessment of their conduct;
(ii) Whether the barrister has been offered THE OPPORTUNITY TO EXPLAIN THEIR CONDUCT, and if not, why not;
(iii) ANY EXPLANATION which has been or could have been offered;
(iv) Whether the matter has been, or will be, RAISED IN THE LITIGATION IN WHICH IT OCCURRED, and if not, why not.
gC98
Having considered all the circumstances, including those above, you MUST make a report IF you have before you material which ESTABLISHES A REASONABLY CREDIBLE CASE OF SERIOUS MISCONDUCT.
When must you report?
gC98
Having considered all the circumstances, including those above, you MUST make a report IF you have before you material which ESTABLISHES A REASONABLY CREDIBLE CASE OF SERIOUS MISCONDUCT.
If you are not sure to report or not …. What does the guidance state?
The BSB Guidance on Reporting Serious Misconduct of Others states that if, having considered all of the circumstances, you remain unsure as to whether or not there has been serious misconduct, you should err on the side of caution and make a report to the BSB.
Who could you call for help?
In making the decision about whether conduct amounts to serious misconduct, or whether to make a report at all (particularly where you are the victim of the serious misconduct), you are encouraged to contact the Bar Council’s Ethical Queries Helpline.
As a pupil who should you talk to?
Pupil barristers and new entrants to the profession are encouraged to discuss any concerns they have in reporting serious misconduct with relevant colleagues, pupil supervisor or head of chambers.
When are you NOT under a duty to make a report of serious misconduct?
rC68
You are NOT under a duty to make a report of serious misconduct if:
(i) The circumstances which give rise to your belief come from MATTERS ALREADY IN THE PUBLIC DOMAIN and you reasonably consider that the FACTS WILL HAVE COME TO THE ATTENTION OF THE BSB;
(ii) THE MATTER HAS ALREADY BEEN REPORTED TO THE BSB by the barrister concerned;
(iii) DISCLOSURE WOULD BREACH THE LEGAL PROFESSIONAL PRIVILEGE of the person who has committed the misconduct;
(iv) You become aware of the serious misconduct as a result of your work on a BAR COUNCIL ADVICE LINE.
Can you victimise another for reporting?
rC69
You must not VICTIMISE anyone for making a report
What if conduct falls just short of Serious Misconduct?
gC102
Misconduct which falls short of Serious Misconduct must nonetheless be reported to your Head of Chambers or equivalent person.
When do you have to give information to the BSB?
rC64.1
Providing Information to the BSB
(a) You MUST promptly provide all such information to the BSB as it may from time to time require of you, and notify it of any material changes to that information.
