There is a strong tradition at the Bar of discussing with other counsel either in chambers or at court legal issues and problems. Some matters tend to be kept quiet though, and disciplinary investigations are a prime example.

“For about a year it was all I thought about, and I believe it began to interfere with my work in court. I felt very awkward about talking to others about it, as I would have done if I’d had a query over one of my cases in court,” was the experience of one senior junior who faced an allegation of professional misconduct in 2005. He is unwilling to be named even though the matters were not proved against him. He was fortunate enough to receive the assistance of a senior criminal Silk who advised and represented him before the tribunal pro bono, and of whom he says “I’ll always remember his kindness and diligence.” However, for the last two years there has been another source of support.

In April 2007 the Bar Mutual Indemnity Fund (“the Bar Mutual”) adopted a new approach to funding barristers’ representation at some disciplinary hearings. Advice and advocacy are now paid for by the Bar Mutual, and provided by counsel (and solicitors if necessary) experienced before such tribunals. The Bar Mutual’s cover was extended to include costs and expenses incurred with the Bar Mutual’s consent in defending disciplinary proceedings.

The traditional approach

Before 2007, the true picture of representation was an unpredictable and patchy one. Some barristers suffered in silence, through lassitude or embarrassment. Others approached senior members of the Bar directly, or via friends or through voluntary organisations such as the Barristers’ Complaints Advisory Service (“BCAS”). It was a system based on the honourable tradition of help by the Bar to other barristers in need, given willingly and without expectation of payment. For many years the convention has been that any senior junior or Silk who heard of a colleague facing a complaint should offer assistance, rather than wait to be asked.

However, the traditional structure relied too much on the person in need having the courage to ask another for help, and knowing whom to ask. Not everyone has easy access to those of sufficient Call or experience who can conduct such work, or recommend others. This is especially true of sole practitioners who are not of course in chambers.  Some members of the Bar are unwilling to have allegations against them known by anyone. Those at the start of their careers may not wish to burden others or to ask for or accept the unpaid help of those far senior to them.

The Bar Mutual

The Bar Council sought a change and the Bar Mutual agreed. Given that under the Code of Conduct all barristers must be insured through the Bar Mutual, it seems only reasonable for us to take full advantage of the services it provides and for which we pay.

Thomas Miller provides management services to and administers the Bar Mutual as well as other professional mutual indemnity funds; it is the body to contact in the event of a BSB letter. It should be noted that not all disciplinary allegations are covered. Amongst the exclusions are charges relating to continuing professional development, practising certificates, insurance and failures to respond to BSB letters about these three areas.

Miranda Levey who specialises in barristers’ disciplinary work at Thomas Miller sees the two benefits of representation recommended and funded by the Bar Mutual as objectivity and experience, and adds “a colleague in chambers may not have the distance to provide effective advice.”

It is clear how valuable that distance can be: facing a complaint counsel may feel more comfortable and be better served by giving instructions to someone wholly detached, and able to give dispassionate advice. It is a valued principle to which the Bar adheres in the conduct of all professional work; so why not equally when facing disciplinary allegations?

If need be, assistance can be provided even late in the day. The Bar Mutual was recently consulted by a barrister only three weeks before a disciplinary tribunal; the case was prepared and specialist counsel was instructed in time. It is hard to resist the view that some may feel that if they fail to deal with the letters, the complaint will go away.

Dealing with a complaint

Although those at Thomas Miller will give any help they can at the last minute, the ideal situation is one in which they are consulted as soon as the barrister is first made aware of a complaint by the BSB. As a first step many barristers can be helped to seek an extension of time to give a response. This is often granted if a cogent explanation is given. After this a fundamental step is drafting counsel’s response. This document is crucial. In a very few cases is can help to determine whether the complaint goes forward at all. Its wording is likely to have a bearing on the way the complaint proceeds and in which of the different levels of tribunal it is heard. This in turn means that at a very early stage a view must be taken of the long-term approach to the allegations and their constituent parts: how much of it is to be denied and how much if at all is to be candidly accepted. In the event of a sanction being passed on the barrister it is powerful mitigation to show, where appropriate, that from the beginning a contrite and temperate position was taken. In other cases the denial will be complete and puissant. Experience as an advocate before such disciplinary panels is invaluable at the preliminary stage of drafting the response.

It is not uncommon for a response drafted by unassisted counsel to be damaging to his or her case. In Ms Levey’s view, those responding “can sometimes be less than objective and consequently correspond with the BSB in an inappropriate manner which can jeopardise an otherwise valid defence.”

Since the inception of the scheme over 120 counsel have sought the assistance of the Bar Mutual through Thomas Miller, and as more become aware of it the hope is that such use will increase. One has to recall too that the BSB has recently brought a new disciplinary regime into operation. Bar Mutual premiums incidentally are not calculated by taking account of complaints so one’s premium will not be increased as a result of one. The more widely the cover is known by the Bar, the more members will stand to benefit.

Luke Blackburn is a barrister at 7 Bedford Row