CONDUCT TRIBUNAL PROFESSIONAL CONDUCT TRIBUNAL … · 2019. 7. 15. · 1 CONDUCT TRIBUNAL PROFESSIONAL CONDUCT TRIBUNAL Patrick McCann SC 22nd APRIL 2013 1. INTRODUCTION 1.1 I am

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CONDUCT TRIBUNAL

PROFESSIONAL CONDUCT TRIBUNAL

Patrick McCann SC 22nd APRIL 2013

_____________________________________

1. INTRODUCTION

1.1 I am the Chairperson of the Barristers’ Professional Conduct Tribunal. I am in

practice as a Barrister for 26 years.

1.2 HARD TO QUALIFY

This role means I am also the extern examiner for professional ethics at the

Inns. In reading the exam scripts last year I was reminded, once again, how

hard it is to become a barrister and, as we know, it is hard to get started, to

nurture a practice and to sustain a practice. My purpose this evening is to

encourage knowledge of the Code of Conduct so as not to “throw away” these

efforts by misconduct which may result in the suspension or termination of a

career.

1.4 CPD Unit and CPD Obligations

1.4.2 The importance of the work of the CPD unit and the risks for Barristers who

ignore their CPD obligations has recently been addressed by the Tribunal. The

Tribunal also surveyed how the UK Standards Body has addressed this issue and

identified some sample findings and sanctions:

“Of course, the Tribunal recognises that a failure to meet professional

development requirements may amount to professional misconduct. The Code

of Conduct for the Bar of Ireland (“the Code of Conduct”) provides at paragraph

9.2:

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‘The Bar Council may specify by way of scheme or rules, the nature, content and

format of courses and other activities which are required to be undertaken by

barristers (or any category of barristers) by way of continuing professional

development. A barrister shall comply with any such scheme or rules. A

barrister may be required to submit details of continuing development

undertaken, to the Bar Council in the form prescribed, and at the time specified,

by the Bar Council.”

Arising from the above it is clear that in an appropriate case a barrister could be

in breach of the Code of Conduct if he or she failed to meet continuing

professional development obligations and/or failed to submit details of continuing

professional development undertaken in the prescribed form.

The Tribunal considered the provision of the Code of Conduct and how other

jurisdictions and professions dealt with similar matters (see Appendix 1). The

survey of relevant professions within and outside the jurisdiction, on which the

Tribunal relies and will rely for any future case on the merits, makes it clear that

obligations of this nature are now fundamental to professional practice and the

maintenance of standards in the public interest and that a barrister who fails to

meet continuing professional development obligations and/or fails to submit

details of continuing professional development undertaken in the prescribed form

where they continue to practise, having failed to avail of remedial options

provided by the CPD unit or the PPC, may well be found guilty of misconduct and

sanctioned accordingly.”

1.4.3 The following is a précis of the relevant decisions of the Bar Conduct Tribunal in

the UK.

1.4.3.1 Keith Hugh Raynor, Self Employed barrister called in October 1995 to Lincoln's

Inn was alleged to be in breach of Paragraphs 202(b) and 901.4 of the Code of

Conduct of the Bar of England and Wales (8th Edition)

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Keith Raynor practised as a barrister having failed to complete the prescribed

hours CPD and failed to submit details of the CPD undertaken by him in the

prescribed form by the extended due date of 30 October 2009, contrary to the

requirements of paragraph 202(b) of the Bar's Code of Conduct and Rule 4 and

Rule 7 of the CPD Regulations (Annex C to the Code of Conduct) (see schedule)

and, having been informed of the need to complete the hours by a letter of 26

June 2009, failed to take the necessary actions to cure the non-compliance by

the extended due date of 30 October 2009.

Mr. Raynor was fined £600

1.4.3.2 Euphemia Daisy Borrett-Renn was called in October 2004 to Middle

Temple. A Disciplinary Tribunal (5 person) held an inquiry into alleged breach of

Paragraphs 202(b), 901.1,901.2 and 901.4 of the Code of Conduct of the Bar of

England and Wales (8th Edition).

Ms. Borrett-Renn practised as a barrister having failed to complete the

prescribed 45 CPD hours required under the New Practitioners’ Programme and

having been informed of the need to complete the outstanding CPD for the New

Practitioners’ Programme in a letter dated 24 November 2009, failed to take the

necessary steps to cure the non-compliance by the extended deadline of 30 June

2010. Euphemia Borrett-Renn practised as a barrister having failed to submit

details of the required CPD hours undertaken by her under the New Practitioners’

Programme in the prescribed form and, having been informed of the need to

submit details of the CPD undertaken in the form prescribed, failed to take the

necessary steps to cure the non-compliance by the extended deadline of 30 June

2010. Eupha Euphemia Borrett-Renn, having been given 28 days to pay a

financial penalty of £300 imposed on her by letter dated 29 September 2010, in

accordance with paragraph 901.1 of the Code of Conduct, failed to pay the said

financial penalty by the extended due date of 1 December 2010.

The sentence of the Tribunal was that in relation to Charge 1- Suspended from

practise until CPD completed and Regulations followed. Fined £1000 Charge 2 -

Suspended from practise until CPD completed and Regulations followed. Fined

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£1000 Charge 3 - Fined £1000 and to pay outstanding £300 non-disciplinary fine.

Costs: £1572.00

1.4.3.3 Nadine Samantha Hope. Called: February 1988 to Lincoln's Inn

Disciplinary Tribunal (5 person) held an inquiry into alleged breaches of

Paragraphs 901.5 and 202(b) of the Code of Conduct of the Bar of England and

Wales (8th Edition)

Ms. Hope practised as a barrister having failed to complete the prescribed 12

hours Continuing Professional Development and/or failed to submit details of the

CPD undertaken by her in 2009 in the prescribed form by 31 January 2010,

contrary to the requirements of paragraph 202(b) of the Bar’s Code of Conduct

and Regulations 5 and 7 of the Continuing Professional Development Regulations

(Annex C to the Code of Conduct), such failure being serious as to amount to

professional misconduct by virtue of a previous failure by Miss Hope to comply

with the same provision of the Code of Conduct, namely paragraph 202(b),

which failure was found proved at a Disciplinary Tribunal on 15 June 2010, in

respect of Miss Hope’s 2008 CPD requirement. Ms. Hope was disbarred. Date of

decision 16 June 2011

1.5 Volume of Complaints. Nature of Sanctions.

I was appointed a member of the Barristers’ Professional Conduct Tribunal in

2007 by the Bar Council. I have been re-appointed from time to time since then.

I am one of four Barrister members. There is a lay majority on the Tribunal. I

will explain the existing jurisdiction and the work of the Tribunal in a few

moments.

Since October 2007 to date there have been 320 formal complaints made to the

Tribunal. Over 50 oral hearings have taken place. There have been 15 findings of

misconduct on one or more counts against individual barristers. Cumulative fines

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over that period have been approximately €30,000. The cumulative periods of

suspension have been 30 months. There have been 3 suspensions for non-

compliance with sanctions and there have been two recommendations for

disbarment. One Barrister has been struck off and the other disbarment case is

pending before Kings Inns.

1.6 Disclaimer

My presentation this evening does not represent the view of the Tribunal and

should not be understood as representing the views of the Tribunal or its

members. I am expressing my own personal views.

2. CONDUCT TRIBUNAL

2.1 Introduction

When a complaint of misconduct is made against a barrister, it is investigated

and adjudicated upon by the Barristers’ Professional Conduct Tribunal. The

Tribunal seeks to uphold the Code of Conduct for the Bar of Ireland and proper

professional standards.

The BPCT is made up of nine members. Four are practising barristers-2 Junior

Counsel Alan Dodd and Anne-Marie Lawlor and two Senior Counsel-Denis Mc

McCullough and myself and five of whom are non-lawyers nominated by IBEC,

ICTU and the Bar Council. The lay members are Noirin Greene nominated by

ICTU. She also sits on Solicitors Disciplinary Tribunal and works as a Trade

Unionist and Journalist. Dr Pat O’ Neill is a doctor specialising in sports injury and

sits on Doping Tribunals. Maire Sweeney is nominated by IBEC. She also sits on

EAT. Dr. Aine Hyland is a former member of UCC governing body, is an

educationalist and sits on the Press Council. Maurice O’ Connell is a former

Governor of the Central Bank.

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There must be at least three members at each meeting of the Tribunal, of which

two must be non-lawyers and one lawyer. There is a lay majority throughout

the process. Any decisions are made are by a simple majority.

In practice, in my experience, there has never been a vote at the Tribunal and

Decisions are arrived at by consensus.

2.2 Procedure

Every complaint is to be set out on a standard complaint form, a copy of which is

sent by the Secretary of the Tribunal to the barrister, about whom the complaint

is made, as soon as possible.

In practice, the Tribunal Secretary will assist in preparing the complaint and the

Tribunal will allow latitude to the complainant to see if a viable complaint can be

extracted from the documentation submitted. In one case a person with a

mental illness sent in a complaint running to hundreds of pages. Every single

page was examined to see if a viable complaint against any identified barrister

could be extracted. This part of the Tribunal’s procedures is pro-consumer and

the Tribunal believes that is the correct way to proceed.

The barrister then has 14 working days to make a written reply, which is again

set out on a standard form. The complaint form states whether an oral hearing

is sought and if so, the reasons why. However, the Tribunal has the discretion

to order an oral hearing regardless of whether or not it is requested.

The Tribunal determines which procedures it adopts in investigating and

adjudicating on the complaint but any such procedures must be in accordance

with constitutional law and natural justice and are designed to ensure a fair

hearing. Evidence is not sworn, and formalities are kept to a minimum.

If the Tribunal finds there is no basis to the complaint it can reject it. Each party

can be legally represented and in general the parties will bear their own costs.

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The Tribunal is not entitled to make an order for costs but may in its discretion

direct the Bar Council to provide reasonable assistance to either party’s counsel.

The Tribunal proceedings and the documents relating to it are entirely

confidential. If the complainant breaches the confidentiality requirements the

Tribunal is entitled to reject the complaint. If the answering barrister breaches

confidentiality, this action shall constitute conduct contrary to proper professional

standards.

The Tribunal has no power to subpoena witnesses. However, it may request any

person to attend to give evidence before it or request any person to produce any

documents or evidence, which the Tribunal may require. This is the case

regardless of whether either party requested the person be called or the

documents produced. If a barrister is called to give evidence or produce

documents or evidence, he has a professional obligation to do so, subject only to

his obligation of confidentiality to a client.

2.3 Decision

The Tribunal will either reject or uphold a complaint. If the complaint is upheld

the Tribunal will further decide whether the barrister is guilty of a breach of the

Code of Conduct or of a breach of proper professional standards.

2.4. Publication of Decisions

The Disciplinary Code would appear to be somewhat equivocal as to whether a

Finding of Misconduct should be published or not. On the one hand a discretion

appears to be conferred on the Tribunal:

“D4. The Tribunal shall be entitled to exercise its discretion whether to disclose

any Decision, or any part thereof, in regard to a disciplinary measure to be

imposed on a barrister whether the Decision, or any part thereof, in respect of the

complaint which gave rise to the disciplinary measure has or has not been

disclosed. A barrister in respect of whom a complaint has been dismissed shall be

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entitled to require that the fact that the complaint was dismissed shall be disclosed.

“

However, earlier in the Code the provisions would appear to afford no discretion in

certain circumstances:

“ C3. Any Decision of the Tribunal imposing one or more of the disciplinary

measures provided in paragraphs D3 (e), (f), (g), (h), and (i) shall be published by

the Tribunal on the Bar Council Website and in such other manner as it may think

fit. The Decision shall remain confidential if it is the subject of any appeal to the

Appeals Board, and may not be published before the expiry of the time for lodging

an appeal. Notwithstanding any other provision of this Code, the Tribunal shall be

entitled to make disclosure any of its Decisions, or any part thereof, in such

manner as it may think fit. A Decision of any Tribunal shall state whether such

Decision, or any part thereof, is to be disclosed and if so, in what manner it is to be

disclosed. “

In an appropriate case the Tribunal may have to resolve this apparent conflict. For

my own part, and I said this in advance of the last substantive amendment to the

Code, I believe that mandatory publication in respect of certain sanctions may have

the opposite effect to that intended and there may be a temptation for the Tribunal

to choose a lesser sanction in circumstances where a more severe sanction would

also bring with it publication. If this apparent conflict is to be resolved by way of

amendment I would suggest that the clear discretion conferred on the Tribunal to

publish or not to publish ought to be confirmed and made unequivocal.

2.5 Penalties

When the Tribunal upholds a complaint, both sides are given an adequate

opportunity to make written representations to it as to what would be an

appropriate penalty to impose.

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The Tribunal may impose any one or a combination of the following penalties in

cases where a barrister has been found to have breached the Code of Conduct

or proper professional standards:

Take no action save to record the result of the complaint;

Admonish the barrister (happens occasionally, usually in conjunction with

other penalties)

Impose a fine (happens more often.

Require repayment of specified fees by the barrister or order the barrister

to forego the payment to him of specified fees (Appeals Board increased a

penalty last year by ordering return of fees in addition to the payment of

a fine)

Suspend the barrister’s membership of the law library or remove him from

the Register of Practicing Barristers either for a specified period or until a

specified act is carried out (has happened twice last year as a result of

non-payment of fines)

Recommend to the Benchers of the Honourable Society of King’s Inns that

the barrister be disbarred.

If the complaint was not upheld, the Tribunal may nonetheless advise the

barrister in relation to his or her conduct.

2.6 Appeals

Either the complainant or the barrister may appeal the Tribunal’s Decision to the

Professional Conduct Appeals Board. The Appeals Board now consists of five

members: a Judge or retired Judge of the Superior Courts, a senior practising

barrister and three non-lawyers, two nominated by the Attorney General and one

by the Bar Council Chairman. (NB Lay majority throughout the process). Of the

nineteen appeals dealt with last year, two were allowed.

2.7 Conclusion

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The numbers of complaints varies from year to year. They used to average

about fifteen to twenty per annum, but this is increasing. In 2007 there were 32

new cases, 38 in 2008, 32 in 2009, 41 in 2010, 45 in 2011, 109 in 2012 and 13

so far this year.

While any aspect of a barrister’s professional conduct can be the subject of a

complaint the recurrent themes are:

Undue pressure to settle or compromise

Delays with paperwork

Not following instructions

Conflict of interest

Serious rudeness (Sometimes good advice robustly delivered)

Manner of cross examination (This charge is often made against the

opposing barrister, but the Tribunal in many cases has not been

persuaded the cross examination was so objectionable and, if it was then

the complainant’s own barrister should have brought it to the attention of

the Judge)

Excessive fees (in general a matter for the taxing master, not the

Tribunal)

Knowingly misleading the court (Allegation often made against the

opposing barrister, misunderstanding his/her role)

2.8 Deferral of Complaints pending ongoing related litigation

The Tribunal has to guard against being used as a further/alternative court of

appeal. It has generally not got involved if the litigation out of which the

complaint arose is continuing, or there is an appeal pending or if there is related

litigation.

This long standing policy of the Tribunal is currently under review. The Tribunal

has been conscious that renewed delays in the conclusion of litigation, including

the possibility of references to CJEU , may mean the complaints against

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Barristers could be outstanding for a number of years. This may not be fair to

either the Complainant or the Barrister.

The Tribunal is looking at whether the policy should be relied on where new but

related proceedings are instigated or threatened. For example an unhappy Client

might signal professional negligence proceedings but in fact start with a

misconduct complaint. As the issues are different it would appear possible to

proceed with a misconduct complaint where negligence proceedings have been

threatened. The Tribunal has determined complaints in such circumstances. It

would seem not too great a step to determine complaints in similar

circumstances where negligence proceeding have actually commenced.

Even where the underlying proceedings, as opposed to related proceedings, are

ongoing the Tribunal on a case by case basis is looking at whether there might

be exceptional circumstances whereby it would be able to proceed to a Decision

without risking a trespass on the jurisdiction of the Court or any interference

with court proceedings. For example it might be argued that a clearly

unmeritorious complaints in the course of proceedings, possibly made to secure

some advantage in those proceedings, could be disposed of without risking

trespass or interference. The Tribunal is considering these issues in one or more

cases before it and of course any Decisions here will be subject to ultimate

review by the Appeals Board.

3. THE CONSTITUTION OF THE GENERAL COUNCIL OF THE BAR OF

IRELAND

The Constitution of the General Council of the Bar or Ireland is one of four

primary constitutional documents for the profession of Barristers. The other

three are the Code of Conduct, the Disciplinary Code and the General Rules of

the King’s Inns. The Benchers of the King’s Inns have jurisdiction over their own

rules.

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The functions, powers and status of the General Council of the Bar of Ireland

(“The Bar Council”) are set out in the Constitution of the General Council of the

Bar of Ireland dated 20th February 1914, as amended from time to time.

Paragraph 1(a) (d) provides the Bar Council with residual powers to exercise

residual disciplinary powers.

“1.

A The General Council of the Bar of Ireland (hereinafter referred to as "the

Council") shall be the accredited representative of the Bar and its duty

shall be to consider and report upon and make representations as it shall

consider necessary in all matters affecting the profession and particularly

the conduct and arrangement of the business of the profession,

professional practice, relations within the Bar, relations between the Bar

and Bench, right of audience, the claims of the Bar in relation to the

maintenance and disposal of offices, legislation, or alterations in the

system of administration and all the matters in which the Bar is

professionally concerned, with power to take such steps and do such acts

as it shall consider necessary for the purpose of controlling and regulating

the professional conduct of the members of the Bar and securing and

protecting their interests with relation to any of the aforementioned

matters.

Without prejudice to the foregoing, the Council shall :-

(a) have absolute control and management of the Law Library and any rooms

attached thereto and of the officials and staff employed in connection

therewith,

(b) have control over any other premises from which a member of the Bar

may practice, other than the residence of such member of the Bar,

(c) have the power to exercise disciplinary powers over all barristers

PROVIDED ONLY that no regulations shall seek to interfere with practice

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at the Bar or membership of the Law Library save for good reason

connected with proper professional practice or the failure of such persons

to meet their commitments to the Council, and

(d) shall have, for any of the purposes aforesaid, the power to manage all

funds in the control of the Council and to borrow moneys whether upon

security or otherwise.”

Clause 55 and 56 of the Constitution address disciplinary options available to the

Bar Council, usually operating through the Professional Practices Committee to

directly refer a matter to the Disciplinary Committee of the King’s Inns where a

disciplinary matter has arisen by virtue of its own investigations or where the

complaint has come before the Bar Council, exercising its mediation jurisdiction,

from either a Judge or a fellow barrister. This latter jurisdiction is provided for in

Paragraph A4 of the Disciplinary Code. The relevant Clauses of the Constitution

of the Bar of Ireland are as set out below:

DISCIPLINE

55. All members of the Bar shall be subject to the terms and conditions of the

Code of Conduct for the Bar of Ireland for the time being in force and to the

decisions of the Barristers' Professional Conduct Tribunal and the Barristers’

Professional Conduct Appeals Board, and the Benchers of the Honorable Society

of King’s Inns.

56. Where a complaint is received, or an investigation pursuant to Paragraph 1.5

of the Code of Conduct for the Bar of Ireland is conducted, by the Bar Council in

respect of a barrister, and it is the opinion of the Bar Council that the complaint

or investigation is of sufficient seriousness to render it appropriate to be brought

before the Disciplinary Committee established by the General Rules of the

Honorable Society of King’s Inns, or where the Barristers’ Professional conduct

Tribunal or the Barristers’ Professional Conduct Appeals Board (as the case may

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be) so requires it, the Bar Council, shall exercise the power and function to

prefer and present a complaint of professional misconduct before the Disciplinary

Committee of the Benchers of the Honorable Society of the King’s Inns and shall

have the power and function to take such other actions in relation to complaints

or investigations as are envisaged by those General Rules. For the avoidance of

doubt “sufficient seriousness” means that the Bar Council considers that the

conduct, the subject of the complaint or investigation, if substantiated before the

Disciplinary Committee might result in the disbarment of the barrister.

57. Notwithstanding any other provisions of this Constitution, the Bar Council

shall prefer and present a complaint to the Disciplinary Committee where the

Barristers’ Professional Conduct Tribunal or the Barristers’ Professional Conduct

Appeals Board so requires.

58. Neither the Annual General Meeting of the Bar nor a General Meeting of the

Bar shall have any power or any jurisdiction to consider, rescind or vary any

decision of the Barristers Professional Conduct Tribunal or the Barristers

Professional Conduct Appeals Board established by this Constitution, or of the

Benchers of the Honorable Society of King’s Inns, whether in relation to its

findings, determinations or orders.

4. RELATIONSHIP BETWEEN THE TRIBUNAL (AND ITS APPEALS BOARD)

AND THE BAR COUNCIL:

The Disciplinary Code for the Bar of Ireland, adopted by the Bar in general

meeting (I believe in 1985) may be considered to be another “constitutional

document” for the Barristers’ profession. It does not have precedence over nor is

it subservient to the Constitution. It is a parallel document of equal status. This

document created the Conduct Tribunal and it has been updated from time to

time most recently in July 2010-I believe.

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The creation of the Tribunal (and the Appeals Board) directly by the Bar in

general meeting means that it is the creation of the Barristers’ profession. It is

not the creation of, much less the creature of, the Bar Council. The Tribunal (and

the Appeals Board) are autonomous entities created by the Barristers’ profession

in general meeting. Because of its mode of creation and its composition, it is

reasonable to contend that a significant part, though not all, of the Bar Council’s

regulatory functions in respect of disciplinary matters have been transferred to

an independent and external body albeit one created by the Barristers’

profession and with links to the Bar. For example, a minority of the Tribunal are

Barristers appointed by the Bar Council and the chair at each tribunal meeting is

a Barrister.

While there are links between the Tribunal and the Bar Council, or its

Professional Practice Committee and while certain disciplinary functions have

been reserved for the Professional Practice Committee of the Bar Council, the

overall structure jurisdiction of the Tribunal (and the Appeals Board) is that of an

independent body which has been created by Barristers and is not subservient to

the Bar Council. The most obvious link is that the Tribunal’s annual budget is

paid for by the Bar Council, in turn financed by the membership of the Bar.

Given that a majority of the members of the Tribunal (and the Appeals Board)

are non-Barristers at all meetings of the Tribunal, it is reasonable to contend that

the disciplinary component of the regulation of the Barristers’ profession is

carried out by independent and in substance external bodies.

The Professional Practices Committee of the Bar Council has a non-binding

dispute resolution procedure provided for in Paragraph 4 of the Disciplinary Code

for the Bar of Ireland which provides:

“…..where a complaint against a Barrister is made by another Barrister or

a Judge, the Professional Practices Committee shall investigate the matter

and shall take such and all steps, as it thinks fit with a view to resolving to

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the satisfaction of the parties, the said complaint. The views of the

committee in carrying out this investigation shall not be binding on either

party, and if unacceptable, recourse may be handed to any other

procedure, provided for in this code.”

Paragraph 4 of the Disciplinary Code makes it clear that the alternative

procedure is non binding and it remains open for a Barrister or a Judge to persist

in their complaint to the Tribunal (and the Appeals Board).

The Disciplinary Code does not specifically empower the Bar Council or the

Professional Practices Committee to bring complaints against Barristers.

However, the jurisdiction of the Tribunal is sufficiently broad “complaints of

misconduct against Barristers shall be investigated and adjudicated on by a body

to be known as the Tribunal ….” to permit complaints from either the Bar Council

or its Professional Practices Committee.

It has been the practice of the Tribunal to accept and adjudicate on complaints

from the Professional Practices Committee or the Bar Council.

The Disciplinary Code also provides for information sharing arrangements

between the Tribunal and the Professional Practices Committee. The existing

Disciplinary Code provides for the notification of the Chairman of the Professional

Practices Committee of complaints made to the Tribunal and further provides

that the Tribunal should provide the Chairman of the Professional Practices

Committee with such information relating to a complaint and the progress

thereof as the Chairman might reasonably require. The practice here is under

review by the Tribunal so as to ensure the greatest possible confidentiality in

accordance with the Disciplinary code, Data Protection legislation and rights to

privacy.

In particular the Tribunal is concerned the fact of a complaint is a matter which

would engage privacy rights and in respect of which protective orders might be

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made. The Tribunal is conscious that complaints in recent years have included

unsubstantiated complaints of sexual crimes against minors and that

complainants have, though not in the same complaint or complaints,

misidentified the Barrister against whom they wished to make a complaint.

I draw attention to Paragraph B.9 so as to show that the Tribunal has linkages

with the Bar Council. Additional linkages include, as a matter of practice, the fact

that the Bar Council pays or offers fees to the non-Barrister members of the

Tribunal, appoints and pays the salary of the Tribunal’s secretary and further

pays the Tribunal expenses including offering modest annual gratuities for the

Barrister Members of the Tribunal. A wine selection.

The Disciplinary Code, in its own terms, aims to provide for the existence of

“consistent, effective, fair and transparent complaint and appeal procedures…”.

These are desirable and laudable objectives. I would suggest that additional

objectives that ought to be (and indeed are) pursued by the Tribunal (and the

Appeals Board) are to ensure the disciplinary system is effective, in accordance

with the standards of the profession, its sense of right and wrong and is further

consistent with the public good and that the public is reasonably assured that

members of the Bar are subject to an independent external body as regards

disciplinary matters. In this regard, it seems to me that a critical component of

confidence for the general public (well intentioned and otherwise) is that the

Tribunal is independent of the Bar Council and that its linkages (some which are

necessary) are as minimal as possible consistent with common sense.

Given the above, it is incorrect to say that the Bar Council investigates its own,

or the Bar Council has both a representative and a conflicting disciplinary or

regulatory jurisdiction. On the contrary, it is the case that the Bar Council has

only residual and limited disciplinary functions for example as a complainant. The

greater part of the regulatory powers of the profession have either been

entrusted to the Conduct Tribunal and the Appeals Board or, as in the power to

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write the Code of Conduct, reside in the membership of the Bar in General

Meeting

5. PRINCIPLES APPLIED BY CURRENT CONDUCT TRIBUNAL

5.1 CONDUCT OTHERWISE IN PURSUIT OF PROFESSION AS A

BARRISTER

The Code of Conduct provides:

“1.2 It is the duty of barristers:

(a) to comply with the provisions of the Code;

(b) not to engage in conduct (whether in pursuit of their

profession or otherwise) which is dishonest or which may bring the

barristers' profession into disrepute or which is prejudicial to the

administration of justice;

It is by no means common that a professional Code of Conduct would

purport to have jurisdiction over conduct outside the profession. The

Teacher’s code doesn’t for example.

However, as can be seen, it may be that such conduct could go to the

trustworthiness of a Barrister or to the reputation of the profession as a

whole. The Tribunal had addressed this issue on a number of occasions and

the applicable principles (endorsed by the Appeal’s Board) have for example

been set out as follows:

“In determining what constitutes conduct which may bring the profession

into disrepute within the meaning of paragraph 1.2 of the Code of

Conduct, the Tribunal is satisfied that such conduct must be untruthful

and/or improper and/or unethical conduct or a communication of a similar

nature or a combination of both.

It must, in addition, be of a serious nature either as so determined by a

Civil or Criminal Court or other Tribunal or clearly such. It must, further,

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not be minor or trivial and it must not be considered by the public to be

such.

The conduct must generally occur outside a Barrister’s private, family or

social life. An exception would be where conduct in a Barrister’s family life

amounted also to criminal wrongdoing. It must generally involve some

element of public or commercial life.

There must be no sufficient excusing circumstances. Overall the conduct

must be such that an ordinary, fair minded, member of the public would

lose confidence or trust in the Barrister’s professional standing.”

5.2 BARRISTER MEANS

The Tribunal addressed its jurisdiction over Barrister that had resigned from the

Law Library:

3.1.1. “ Resignation “.

Mr Rodriguez argued that while the events the subject matter of the complaint

occurred while he was a Barrister, the fact that he has now resigned from the

Law Library means that the Tribunal no longer has jurisdiction over his conduct,

including his conduct while he was a member of the Law Library and while he

was a practising Barrister.

The Tribunal is satisfied that it does have Jurisdiction over Mr Rodriguez conduct,

regardless of the fact that he has resigned his membership of the Law Library.

The Tribunal is satisfied that the Code of Conduct and the Disciplinary Code for

the Bar of Ireland (“the Disciplinary Code”) and the Constitution of the General

Council of the Bar of Ireland (“the Bar of Ireland Constitution”) are equivalent to

the rules of an Unincorporated Association or club and thus are to be governed

by the Rules applicable to the interpretation of the contracts.

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In that regard, arising from the Judgment of the Supreme Court in Analog

Devices BV & Others v Zurich Insurance1, the Tribunal is satisfied that the

Decision of the Supreme Court in Rohan2 and the speech of Lord Hoffman in

Investors Compensations Scheme v West Bromwich Building Society3

summarises the present legal position.

Arising from the above, it appears to the Tribunal that it is entitled to take into

account in interpreting the Code of Conduct and the Disciplinary Code and the

Bar of Ireland Constitution the essential surrounding circumstances. One such

essential factual background is the purpose for which the Code of Conduct is

implemented which is stated to be:

“to ensure proper practice at the Bar and for the purpose of ensuring that

the ultimate consumers and legal services and the sound administration of

justice are provided with the necessary guarantees in relation to integrity,

experience, choice and efficiency….”

The Tribunal is satisfied that if a restrictive interpretation were to be given to the

meaning of a Barrister as being a current member of the Law Library or a person

currently on the Register of Practising Barristers, then the purpose for which the

Code of Conduct was adopted may not be fulfilled. The relevant definition

section is stated to be “save where the context otherwise requires”.

As pointed out by Mr Chang, it would be open to Barristers to resign or retire or

otherwise cease to be practising or subscribing Members of the Law Library so as

to avoid disciplinary sanctions. This would run the risk of making the Code of

Conduct and the Disciplinary Code a nullity and unenforceable.

1 [2005] 1 IR 274

2 [1988] ILRM 373 

3 [1998] 1 ALL ER 98 

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It would also mean that the Tribunal would lose jurisdiction over a Barrister

under the Code of Conduct by the imposition of the sanction of suspension as

provided for in paragraph 1.3 of the Code of Conduct. Such an outcome would

be inimical to the proper regulation of the profession.

Further, paragraph 6.3 of the Code of Conduct provides:

“Barristers who have retired from practice may write Memoirs of their

experience at the Bar, using due discretion in regard to cases in which

they have been engaged, and for the feelings of persons conserved, and

they shall strictly observe the rules of the Code of Conduct with regard to

professional confidences.”

The above paragraph confirms that the Code of Conduct applies and is intended

to apply also to persons who are no longer subscribing Members of the Law

Library and no longer in full time practice at the Bar and in respect of their

conduct after their retirement from practice.

For the above reasons, the Tribunal is satisfied that it continues to have

jurisdiction over Mr Rodriguez’s conduct even though he has (for the time being

at least) resigned his membership of the Law Library.”

The Tribunal might also have in an appropriate case have taken into account and

given weight to the undertaking given by Barristers on their call to the Bar after

1985 and to date where the Memorial or application for entrance into the Kings

Inns included:

“…I undertake that-

… I will not embark on practice as a Barrister without first becoming a

subscribing member of the Law Library, and I will continue in practice

only while retaining membership of the law library and submitting to the

disciplinary jurisdiction of the General Council of the Bar of Ireland…”

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The Tribunal has also considered whether it has jurisdiction over the non-

professional life of a Barrister prior to practice:

5.3 UNPROVEN AND UNPROSECUTED CRIMINAL WRONGDOING

The Tribunal has in Grey v Bayesm 10/16 addressed the relationship between the Jurisdiction of the Tribunal and a complaint of serious criminal wrong as yet unproven and not prosecuted.

The Tribunal addressed a number of competing interests and concluded:

“The second jurisdictional issue arises from the provisions of Rule 1.2 (b) which

provides:

‘It is the duty of a Barrister:

(b) not to engage in conduct (whether in pursuit of their profession

or otherwise) which is dishonest or which may bring the barristers'

profession into disrepute or which is prejudicial to the administration

of justice;’

It is clear that criminal conviction excepting minor criminal conviction e.g. for a

minor road traffic offence, is a matter which might bring the profession into

disrepute.

In this regard, Rule 2.13 of the Code of Conduct provides:

‘Barristers must forthwith report to the Bar Council the fact that they

have been convicted of a criminal offence involving dishonesty or of

a criminal offence which might bring the profession into disrepute.

If barristers are in doubt as to their duty under this Rule, the

conviction should be reported forthwith.’

Given the above, the Tribunal is satisfied that complaint comprising an allegation

of serious criminal wrongdoing is of a nature that it might bring the Barrister’s

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profession into disrepute and is, as a matter of principle, a matter within the

jurisdiction of the Tribunal, subject to whether the Barrister is otherwise subject

to the Code of Conduct.

However, the Tribunal must consider circumstances whereby the said complaint

has also been made to the Gardai4.

In these circumstances, the Tribunal will in general await the verdict, subject to

any Appeal, of any criminal trial.

The Tribunal will then consider the verdict and, on the basis of the verdict and

any penalty imposed on the Barrister, the Tribunal will consider whether the

facts underlying the verdict bring the profession into disrepute.

In respect of a complaint that has been made to the Gardai, (and as set out

above, the Tribunal has been informed that the DPP does not intend to

prosecute this alleged offence at this time), but the prosecuting authorities do

not intend, on the basis of the evidence available and/or other policy reasons to

prosecute then the Decision of the Tribunal is that it will not, in general, embark

on an investigation of the complaint but will rather reject the complaint, while

confirming the right of the Complainant to renew his or her complaint at a later

time in the light of new evidence or a conviction or judgment in a civil trial.

The reasoning for the above position is that to do otherwise would amount to

the Tribunal setting itself up as a parallel criminal justice system.

Further, the process of investigation and adjudication by the Tribunal, in such

circumstances, in respect of an alleged complaint which was not being

prosecuted by the Gardai or the DPP might imperil any future criminal trial and

4 Or could have been to other authorities 

24

could form the basis for an Order of a Prohibition of any future trial or could

taint the evidence at any such trial.

3. Decision:

As regards the alleged criminal wrongdoing, it is clear to the Tribunal that this

case falls into the category of cases where the criminal matter is a serious one.

Secondly, the matter has been complained to the Gardai and has been

considered by the DPP. The DPP has decided, at this time, not to proceed with a

criminal trial. In these circumstances, the Tribunal has decided that it would be

wrong, in principle, for it to embark on its own investigation and adjudication

into matters which might become the subject matter of a criminal trial (or indeed

a civil trial) in the future and particularly so where any such investigation or

adjudication by the Tribunal might compromise any such further or future

criminal or civil trial and might taint the evidence or otherwise damage the

prospects of a successful prosecution. These are all matters which the Tribunal

must guard against being mindful that the Tribunal must not set itself up as a

parallel system of criminal justice.

For the above reasons and as set out in the analysis section of this Decision, the

Tribunal decides that it will reject this complaint while expressly reserving the

right of the Complainant, should further evidence come to hand, to renew this

complaint or to renew this complaint in the event of a criminal verdict or a civil

judgment is entered against the Barrister.”

5.4 COERCION

The Tribunal has in cases made the following or similar observations of a general

nature which appear worth repeating.

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“The interactions between Barristers, Solicitors and Clients in respect of pre-trial

negotiations (“i.e. negotiations on the steps of the Court”) are often a source of

dissatisfaction. There are a number of reasons for this.

First, negotiations take place in circumstances where Clients had prepared

themselves to give evidence and have their case heard. There must necessarily

be some difficulty in trying to accommodate the mindset change required for a

settlement.

Secondly, these settlement negotiations are often prepared in circumstances of

significant time pressure on Clients, Solicitors and Barristers. A Judge, who has a

busy list, will be anxious to move the list on and have a settlement achieved or

have the case heard. A Judge will be particularly reluctant to permit Clients to

have an unlimited period of time while the Court might be free and available to

hear cases. This is pressure on all the participants arising from the limited

resources available for civil trials.

Thirdly, there does appear to be a difficulty, often after the event, arising from

the fact that the Barrister must honestly and clearly identify the strengths and

weaknesses of a Client’s case. It would appear to be often the case that a

Barrister who is clear about the weaknesses of a Clients’ case is sometimes

perceived as having “gone over to the other side” or as more than one

Complainant has described it “playing for the other team”. On the other hand, if

a Barrister did not identify the weaknesses in a Client’s case, he or she could

legitimately be criticised for not giving his Client full, fair and reasonable advice.

Fourthly, a Client often perceives a listing of challenges or imperfections in the

case as amounting to coercion. The Tribunal considers there is a difference

between a Barrister indicating to a Client that they may lose or there is a risk

that they will lose and a barrister informing a Client in a declaratory fashion that

they are certain to lose, or that the Judge is certain to find against them or that

there is certain to be an award of costs made against them.

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A cataloguing of purely negative messages, in unadorned and emphatic terms,

could amount to coercion or intimidation and a Barrister must avoid and guard

against the impression that impartial, clear and, where appropriate, negative

advice is not expressed in terms which suggest that the risk of litigation is all in

one direction and adverse to the Client who is sought to be persuaded to accept

a settlement. Of course, there may be cases where the risk is in fact all in one

direction and the only available correct advice is that a Client is almost certain to

lose.

Fifthly, a Barrister should always, though it would appear to be implicit in the

nature of the relationship, and indicated not least by the fact that they are

invariably during such pre-trial settlement negotiations dressed for Court, that

the Barrister is willing to go to Court and will go to Court even if the Client

rejects the advice they have been given. This, as a matter of good practice,

would seem to be something which barristers should endeavour to communicate

in the course of these pre-trial negotiations.”

Best practice would suggest that Barristers should also keep a note of the course

of settlement negotiations. At a minimum, the letter enclosing the fee note

should record the broad outline of the negotiations both as an aide memoire and

as a contemporaneous record.

5.6 DELAY

The Code of Conduct provides:

“2.16 Barristers may not accept so many instructions that they cannot

reasonably expect to give adequate attention to all of them within a

reasonable time and barristers owe a duty to their instructing solicitor to

inform the solicitor promptly if it becomes apparent that they are unlikely

to be able to attend to their instructions or if there is likely to be a

substantial delay in attending to them.”

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5.7 DELAY IN DEALING WITH WORK OR RETURNING PAPERS

A recurring complaint concerns barrister who fail to deal with work in a

timely fashion and, further, fail to return papers which may include

original documentation. This may have adverse consequences for both

solicitor and client and it is taken seriously by the Tribunal. The Tribunal

made some general observations on the dividing line between delay that

would be professionally damaging ie would make solicitors less likely to

send on work and professional misconduct :

“The issue of what constitutes delay amounting to misconduct or a breach of

proper professional standards in carrying out any given task by a Barrister will

depend on a number of factors including the adequacy of the instructions given

to the Barrister, the complexity of the matter, the value of the matter and

whether the Barrister has forewarned a Solicitor that there may be a delay or, on

receipt of papers, has indicated to his or her Solicitor that there may be some

delay.

However, regardless of the complexity of the matter and taking into account all

the circumstances, including the possibility the relevant period might include the

long vacation, it is difficult to see how any piece of work could without

explanation or justification to a Solicitor be delayed for a period of more than six

months. It appears to the Tribunal that would be the guideline upper limit in any

foreseeable case and that misconduct could arise at a much earlier period

depending on the nature of the work to be carried out.

The Tribunal is further concerned with the failure to return papers. It seems to

the Tribunal that the maximum period which should elapse between the request

for the return of papers in circumstances where they include original

documentation and actual delivery should be three weeks. It is difficult to

envisage circumstances where that period could be extended.”

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Patrick Mc Cann SC 22nd April 2013