Judges and lawyers ethics: system failure?

Joshua Rozenberg’s got a very interesting miscellany of stories published in the Guardian today featuring:

I was also re-reading part of Rick Abel’s book Lawyers on Trial: Understanding Ethical Misconduct. Having read hundreds of Californian and New York conduct prosecutions, and interviewed some of the protagonists for 12 case studies he sets out a series of general findings about common causes of ethical misconduct. These include:

  • the lawyers believed themselves innocent and simply engaged in things that everybody else was doing;
  • inexperience was not generally a cause: “ethical misconduct is learned behaviour; it is not the product of ignorance.”; and,
  • misconduct by these people was chronic not aberrational.

It was against that background that I read Rozenbergs’ comments on a perverting the course of justice appeal where a QC (and presumably the CPS and junior Counsel) failed to deal properly with disclosure obligations (see especially para 32, and feel your jaw sag slightly):

We can only regard the failure to make the disclosure in early 2007 that was subsequently made in June 2013 as a lamentable failure of the prosecutor’s obligations … [Another judge had said that courts] must assume that the prosecution had performed its duty to make appropriate disclosure of relevant material. That, of course, is the case unless the court has reason to doubt the proper performance of the prosecutor’s obligations. Unhappily, it was an assumption that proved to be inaccurate.

I do not know if the judges took the matter further. Whether the barrister has been referred to the BSB, or the CPS workers referred to the DPP and their professional regulators, I do not know. My impression is that judges tend not to make such referrals. If I’m right, it would be interesting to know why. We cannot ask the regulator about this case because they will not tell us. Barristers subject to investigation have anonymity: a practice of understandable origin but questionable benefit.

Abel’s findings about lawyers punished (in US cases) does not prove that those found to have breached professional standards here are likely to be serial offenders; but it should give us pause for thought, particularly given historic and current anxieties about prosecution disclosure of evidence that might help the defence. One of Abel’s other observations also caught my attention. Judges instigate only 1% of complaints to the US Bars studied (and there it is the judges who are ultimately responsible for professional conduct). Regulators need to have good information about potential risks. Not all cases may need investigating, but more cases probably do need investigating, and some will require further action. It is vital that where misconduct is detected it is dealt with. It is simple part of establishing an ethical culture.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to Judges and lawyers ethics: system failure?

  1. On 30th July 2014 a Bar Disciplinary Tribunal delivered their reasons for convicting me on four separate charges of professional misconduct, relating to R v Farooqi. These convictions are currently under appeal.

    I have now set up a web page at http://lawrencemcnulty.wordpress.com the purpose of which is twofold. First, to date examination of the evidence in this case has been restricted to relatively few people. For the first time the documents published here will permit those who wish to do so to examine the evidence in order to form their own conclusions as to whether I am guilty of professional misconduct, or not. Included is a full transcript of my speech and the written reasons of the Disciplinary Tribunal.

    Second, in the reasons supplied for my conviction in respect of charge 4 the Tribunal set out requirements for matters to be included in defence statements which , so far as I am aware, appear nowhere else. As the implication of their findings is that failure to comply with these requirements amounts to professional misconduct, it is important that those who practice at the criminal bar should know what they are.

    Lawrence McNulty

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