Thou shall (not) report…

One of my longstanding favourites in the legal services sphere Legalfutures (HT Nick H) have picked up on a comment by Vanessa Davies (Director, BSB) on my last blog pointing our Barristers have a duty to report serious misconduct.  It might be read as a bit of a hint that the BSB take the matter seriously (as they should and I would think they would) or as an invitation for further and better particulars from those able to evidence the wrongdoing alleged to be in question.  It was prompted the excellent blog of Jolyon Maugham.  It is clear that, unless matters have moved on, Jolyon has not reported the specifics of the matter to the BSB.  Jolyon says in the comments on his own blog:

I have considered my own obligations. To report the Boys would involve me breaching my duties of confidentiality to my clients (through whose instructions I see the Opinions). My assumption is that this trumps my own obligation. But I may be wrong on this. Like you I also wonder – genuinely – whether the BSB is the best tribunal to resolve these issues.

The last sentence is an interesting one.  One of my anxieties about the nature of the problem suggested by Jolyon is that it suggests patterns of wrongdoing that might require quite a wide ranging investigation over a number of cases, whereas the professions tend to concentrate on single complaints (contrary examples might be things like the miners-CFA investigations and ACS Law/Andrew Crossley investigation).  Another is how to manage the process of evidence and judgement on the legitimacy of tax opinions which will become vigorously contested.

It’s the obligation to report and it exceptions that I want to concentrate on though.   rC66 of the Bar Handbook states (in so far as relevant here):

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…

rC68 removes the duty (but does not presumably preclude reporting) if

you reasonably consider it likely that the facts will have come to the attention of the Bar Standards Board” (an interesting exception as the BSB is inhibited (by its own rules, as I understand it) in when it will say a breach has come to its attention and how would one know save the unusual circumstance where someone announces they have made a complaint to the BSB; or

the person who may have committed the misconduct has self reported; or

“the events which led to you becoming aware of that other person’s serious misconduct are subject to their legal professional privilege;” or

“you become aware of such serious misconduct as a result of your work on a Bar Council advice line.”

gC96 provides a starting point for defining serious misconduct.  If a barrister believes there has been serious misconduct, they are enjoined to consider circumstances which might militate against them reporting including, “whether that person has been offered an opportunity to explain their conduct, and if not, why not.” This suggests there may sometimes be an obligation to put the concerns to the barrister in question and to consider their responses.  In broad terms, the guidance seeks to sensibly avoid barristers jumping the gun with allegations of serious misconduct (not something which is very likely, of course, but that’s not a criticism of the BSB for including such guidance).

The most interesting thing for me is that the duty to report is subject to the duty to keep information received from the client confidential or where, “the events which led to you becoming aware of that other person’s serious misconduct are subject to their legal professional privilege”.  I’m imagining that this covers the vast majority, or at least a significant amount, of information that barristers receive about other barristers where they are likely to be in a position to report serious misconduct.  I put matters that occur in open court aside, where the temptation might be to leave problems to judges.  One might hope that the client would waive confidentiality, but clearly this may not always be the case (and in the world of tax this may be a particular problem, for reasons I could guess at but not speak directly of).  The exceptions may not, in law or practice be as wide as I am imagining (I’d appreciate comments).  I’m not sure that a duty of confidentiality adheres to information that shows a fraud, for instance, even if the client is not the perpetrator of that fraud but has received some information about it.   Nevertheless commercial and professional instincts tend towards treating confidences as sacred, and an interesting question is whether this and the BSB rules are likely to inhibit the impact of a duty to report significantly.

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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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