Reporting Serious Misconduct of Others Guidance

Question 1

when must you report a barrister or a registered European lawyer.

Answer 1

Rule C66 states that, subject to your duty to keep the affairs of each client confidential and subject also to Rules C67 and C68, 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.

The BSB intends this rule to achieve the following outcomes:
* Outcome C2:1 BSB regulated persons are effectively regulated;
* Outcome C22: The public have confidence in the proper regulation of persons
regulated by the BSB;
* Outcome C23: The BSB has the information that it needs in order to be able to
assess risks and regulate effectively and in accordance with the regulatory objectives.

Question 2

why should the bob be made aware of any serious misconduct?

Answer 2

It is strongly in the public interest that the BSB is made aware of any serious misconduct. The duty to report serious misconduct is also consistent with parallel obligations for professionals in other sectors.

Question 3

where can you get further guidance?

Answer 3

The BSB recognises that the application of this rule may be particularly difficult in some circumstances. If you require further guidance you may wish to contact the Bar Council’s Ethical Queries Helpline on 020 7611 1307, or at http://www.barcouncil.org.uk/for-the-bar/introduction-to-member-services/ethical-enquiries-line/. This service is confidential and is provided by individuals on an approved list who are not subject to the duty to report serious misconduct of which they become aware as a result of dealing with enquiries on the helpline.

Question 4

what should you report?

Answer 4

You are obliged to report to the BSB instances of serious misconduct by other barristers or registered European lawyers. Whether or not misconduct is serious misconduct is a matter of judgement, which will depend on the particular circumstances. It will ultimately be for the BSB to decide whether enforcement or other regulatory action is necessary in the public interest. If, having considered the factors and circumstances discussed below, you remain unsure whether or not the behaviour in question amounts to serious misconduct, you should err on the side of caution and make a report to the BSB.

Question 5

what is the guidance in c96 on serious misconduct?

Answer 5

You should refer to the list at Guidance C96 for examples of serious misconduct; however, you should be aware that this is not a closed list and that breaches of other provisions may also amount to serious misconduct. Whether serious misconduct has occurred may be a question of the degree to which one or more of the obligations in the Handbook has been breached. Guidance C96 lists the following examples of serious misconduct:
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);
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);
7. being drunk or under the influence of drugs in court (CD2 and/or CD7);
8. failure by a barrister to report promptly to the Bar Standards Board pursuant to rC65.1-rC65.5 (duty to report criminal charges, cautions and convictions, and disciplinary action by other regulators) and/or rC66 (duty to report serious
misconduct by others);
9. a breach by a barrister of rC67 (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.

Question 6

what can become serious misconduct?

Answer 6

Discrimination can constitute serious misconduct. You should be aware of the seven different types of discrimination under the Equality Act 2010.

Question 7

what are the 7 types of discrimination?

Answer 7

Direct discrimination – where someone is treated less favourably than another
person because they are associated with another person who possesses a protected characteristic.
Associative discrimination- this is direct discrimination against someone because they are associated with another person who possesses a protected characteristic.
* Discrimination by perception – this is direct discrimination against someone
because others think that they possess a particular protected characteristic. They do not necessarily have to possess the characteristic.
Indirect discrimination – this can occur when a rule or policy that applies to everyone disadvantages a person with a particular protected characteristic.
* Harassment – this is behaviour that is deemed to be offensive by the recipient. Recipients can now complain about behaviour that they find offensive even if it is not directed at them.
* Victimisation – this occurs when someone is treated badly because they have made or supported a complaint or grievance under this legislation.

Question 8

Harassment is defined in the Equality Act 2010 as?

Answer 8

Unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, or violating the complainant’s dignity.
* Unwanted conduct of a sexual nature (sexual harassment).
* Treating a person less favourably than another person because they have either
submitted to, or did not submit to, sexual harassment or harassment related to sex or gender reassignment.

Question 9

Rule c69 creates an obligation on all barristers not to victimise anyone for making in good faith a report of serious misconduct?

Answer 9

This means that barristers must not treat any individual less favourably because they have made such a report to the BSB. This rule is intended to expressly protect you where you make a report of serious misconduct. It is of vital importance to the intended outcomes of Rule C66, discussed above, that individuals are not discouraged from reporting serious misconduct by the risk of suffering victimisation as a result of doing so.

Question 10

when your a pupil barrister?

Answer 10

You should also take account of the fact that pupil barristers and barristers of fewer years’ standing may be particularly vulnerable due to their relatively junior status and their relative dependence on more senior barristers for work, guidance and support. Pupils or new entrants to the profession may worry that by reporting to the BSB they will subsequently be treated less favourably or otherwise subjected to unwanted conduct, or that their career may be impacted negatively (whether or not such concerns are well founded in particular instances).
14. If you are a pupil barrister, or relatively new entrant to the profession, who has become aware of behaviour potentially amounting to serious misconduct, you may wish first to discuss your concerns with relevant colleagues, with your supervisor, the head of chambers or head of legal practice. You may wish to establish whether any other person is aware of the misconduct in question and/or whether that individual is willing to report the misconduct, or has already done so. You do not need to make a report yourself if you reasonably believe that another person has already done so. You can also contact the Bar Council’s Ethical Enquiries Helpline for further assistance.

Question 11

what happens if the matters relates to you personally?

Answer 11

If the matter relates to conduct which affects you personally, you still remain under an obligation to report serious misconduct to the BSB. However, the BSB will treat any report of discrimination, harassment (whether of a sexual nature or otherwise), or victimisation as sensitively as possible and will not act without first consulting the person who has been affected. Given the sensitivity of this issue, the BSB has a policy of not taking enforcement action for failing to comply with the duty to report if you may have been the subject of these types of misconduct. Nevertheless, we would encourage you to report matters to the BSB and we will always treat such reports sensitively.

Question 12

when should you discuss matters with the ethics helpline?

Answer 12

If you are in doubt as to whether or not particular behaviour amounts to serious misconduct you should consider discussing this with the Bar Council’s Ethical Enquiries Helpline (see above). It is important to be aware that by reporting what you believe may be serious misconduct simply puts the BSB in a position to decide what action, if any, to take by making a fair assessment as to whether or not serious misconduct (or any misconduct) has in fact occurred. Action will only be taken in relation to the barrister or lawyer concerned where this is appropriate, proportionate and in accordance with the BSB’s policies.

Question 13

how should you report?

Answer 13

You should report serious misconduct to the BSB’s Contact and Assessment Team by completing the online form on the ‘reporting concerns’ section of the BSB’s website – there is an option on the online form for reports of serious misconduct.
Using the online form is the best way to report your concerns. However, if you do not wish to report using the online form, you have any access requirements or you would first like advice on the reporting process, please contact our Information Line on 020 7611 1445.

Question 14

when should you make a report?

Answer 14

You should make a report to the BSB as soon as reasonably practicable. You will receive an acknowledgement of receipt of the report, including an explanation of how the BSB will handle the information we receive. Our Contact and Assessment Team will assess the report you have made and decide what the initial regulatory response should be. This may include sending for enforcement action, or passing the information to our Supervision Team.

Question 15

when do you not report?

Answer 15

Your duty to report serious misconduct is intended to help ensure that the BSB has the information that it needs in order to be able to assess risks and regulate effectively and in accordance with the regulatory objectives. With this practical purpose in mind, you are not expected to report unnecessarily or simply as a matter of form. Rule C68 removes the duty to report where:
* the relevant facts are already in the public domain; and/or
* you reasonably consider that those facts will have come to the BSB’s attention;
and/or
* the relevant person has already reported the misconduct to the BSB.

Question 16

more examples where do you don’t need to report?

Answer 16

Rule C68 exempts you from the duty to report if you are aware that the relevant person who committed the serious misconduct has already reported it to the BSB. In other cases, if you are aware that another relevant person, such as the head of chambers, head of legal practice, or a person or committee within a practice which has responsibility for the administration of that practice or for investigating the matter in the first instance, has made a report, then you do not need to do so yourself. However, if you are aware for any reason that the relevant person or committee has failed to report the matter to the BSB, or if there is another reason for not doing so, you should be prepared to report the matter yourself. Guidance C96 lists failure by a barrister to report such matters promptly to the BSB as an example of potential serious misconduct.

Question 17

You should also apply your professional judgement to whether there has been serious misconduct?

Answer 17

You should also apply your professional judgement to whether there has been serious misconduct. Guidance C97 sets out some matters you should consider before reporting. These are:
* whether the individual’s instructions or other confidential matters might have a bearing on the assessment of their conduct;
* whether the person concerned has been offered an opportunity to explain their conduct, and if not, why not;
* any explanation which has been or could be offered for that person’s conduct;
* whether the matter has been raised, or will be raised, in the litigation in which it
occurred, and if not, why not.

Question 18

what further circumstances should you take into account?

Answer 18

Depending on the nature of the misconduct, you may also wish to take further circumstances into account. In particular, you should consider whether there is a risk that the misconduct will continue or be repeated if no action is taken. For example, if the individual’s behaviour relates to discrimination, harassment, victimisation, there may be a further risk of discrimination, harassment or victimisation occurring in the future (see below).

Question 19

reasonable grounds to believe the individual has committed serious misconduct?

Answer 19

Having taken into account these and any other relevant circumstances, you should then go on to consider whether you have reasonable grounds to believe the individual has committed serious misconduct. You should report misconduct where you have material before you which as it stands establishes a reasonably credible instance of serious misconduct. Issues of competence will not normally constitute serious misconduct unless so serious that it poses a serious risk to the public or would diminish the trust and confidence which the public places in the profession.

Question 20

Rule C67 states that you must never make, or threaten to make, a report of serious misconduct without a genuine and reasonably held belief that the obligation to report applies?

Answer 20

Rule C67 states that you must never make, or threaten to make, a report of serious misconduct without a genuine and reasonably held belief that the obligation to report applies. For example, you should not report serious misconduct merely speculatively, out of malice, or to use the reporting of misconduct, or the threat of it, as a ‘litigation tactic’. You should only make a report with regard to the outcomes which the rule is intended to achieve, described above.

Question 21

Barristers acting in a judicial capacity?

Answer 21

28. Serious misconduct before the court will usually be apparent to the judge, and in such cases, the judge hearing the matter may bring the serious misconduct in question to the attention of the BSB. If you are a barrister acting in a judicial capacity, your conduct duties as a judge take precedence over your professional duties as a barrister. The BSB would not expect to take enforcement action against a barrister acting in a judicial capacity. Whilst the obligation to report does not impact on a barrister sitting in a judicial capacity, nothing in this guidance should be taken as preventing barristers from reporting to the regulator serious misconduct observed by a barrister, when sitting, in the normal way.
29. Rules E23 – E24 cover the BSB approach to concerns raised about a regulated person acting in judicial or quasi-judicial capacity, and preclude the BSB from exercising enforcement powers in respect of such a regulated person. Any concerns raised with the BSB about the conduct of a barrister acting in a judicial capacity will be referred to the Judicial Conduct Investigations Office (http://judicialconduct.judiciary.gov.uk/).