Annexe J - The Complaints Rules

Introduction

1. These Rules prescribe the manner in which

a. all complaints about the conduct of or services provided by barristers and
b. all complaints about the conduct of persons who, at the time of such conduct, are serving a sentence of disbarment which is subsequently overturned on appeal
shall be processed. In these Rules, the expression “barristers” shall be interpreted as including persons falling within sub-paragraph 1(b) above

2. The membership of the Professional Conduct and Complaints Committee ("the Committee") shall be as prescribed by the Standing Orders of the Bar Council as amended from time to time.

3. Anything required by these Rules to be done or any discretion required to be exercised by, and any notice required to be given to, the Complaints Commissioner ("the Commissioner") or the Secretary of the Committee ("the Secretary"), or the President may be done or exercised by, or given to, any person authorised by the Complaints Commissioner to act in his stead or by the Chief Executive of the Bar Council to act instead of the Secretary of the Committee or to any person authorised by the President to act in his stead (either prospectively or retrospectively and either generally or for a particular purpose).

4. The Commissioner, the Committee, the Chairman of the Committee, and the Secretary or any person authorised under paragraph 3 above, shall have the power to extend any time limits prescribed by these Rules, in his or their absolute discretion, whenever it appears to be appropriate to do so.

Power of the Bar Council to raise complaints

5. The Bar Council shall have the power of its own motion to raise complaints about the conduct of or services provided by barristers. Save as otherwise provided by these Rules, such complaints shall be dealt with by the Secretary in the manner set out in paragraph 25 et seq. below

Procedure for dealing with complaints by outside persons

6. Any complaint other than a complaint raised by the Bar Council of its own motion shall be referred to and considered by the Commissioner before any further step is taken in accordance with these rules. The Commissioner's powers in relation to a complaint so considered by him shall be those set out in paragraph 8 to 24 below.

7. The Secretary shall take such steps as are reasonably practicable to inform the complainant of the progress and result of his complaint.

The Commissioner’s powers

8. The powers of the Commissioner shall be to consider complaints made by outside persons and to determine whether in his view such a complaint discloses a prima facie case of professional misconduct or inadequate professional service and is apt for consideration by the Committee. The Commissioner shall also have the power to make recommendations to the Committee that a barrister whose conduct does not amount to professional misconduct or inadequate professional service should be advised or warned about his conduct or directed to apologise to his client. In the exercise of that power he shall observe the following provisions.

9. If it appears to him that the complaint relates to a matter within the domestic jurisdiction of an Inn or a Circuit, he may refer the complaint without further consideration to the Treasurer of the Inn or the Leader of the Circuit concerned and notify the complainant of his decision.

10. (a) If it appears to the Commissioner that the complaint arises out of a barrister's actions in a part-time or temporary judicial or quasi-judicial capacity, he shall act as follows:

(i) If it appears to him that the complaint would otherwise fall to be dismissed under these provisions, he shall so dismiss it.

(ii) If it appears to him that the complaint would otherwise not fall to be dismissed, the Commissioner shall refer the complaint without further consideration to the person or body responsible for the appointment of the barrister to the judicial or quasi-judicial office concerned (whether the Lord Chancellor, a Minister of the Crown or other person or body as appropriate), requesting him to notify the Commissioner when the complaint has been dealt with and of any action taken, and the Commissioner shall notify the complainant of his decision so to refer it. Where the Commissioner considers it inappropriate to refer the complaint to a person other than the Lord Chancellor or a Minister of the Crown or where that other person refuses to deal with a complaint, he shall consider the complaint and, subject to (iv) below, direct it to be proceeded with in accordance with paragraph 25 et seq below.

(iii) If the Lord Chancellor, Minister of the Crown, or other person responsible for the appointment, having dealt with a complaint, believes that it may be appropriate for further consideration by the Bar Council, he may, subject to (iv) below, refer the matter to the Commissioner who may reconsider the complaint and may, if he sees fit, direct it to be proceeded with in accordance with paragraph 16 et seq below.

(iv) No such reference to the Commissioner as is mentioned in (iii) above by the Lord Chancellor, Minister of the Crown, or other person responsible for the appointment shall be acted upon by the Commissioner, nor shall the Commissioner exercise the powers under the last sentence of paragraph (ii) above in respect of any part of the complaint relating to anything said or done by the barrister in the exercise of his judicial functions or affecting the independence of the barrister in his judicial or quasi-judicial capacity.

(b) If it appears to the Commissioner that the complaint relates to the conduct of or professional services provided by a barrister who, since the events giving rise to the complaint took place, has been appointed to and continues to hold full-time judicial office and has ceased practice, the Commissioner shall not consider the complaint further and shall inform the complainant that his complaint should be directed to the Lord Chancellor or to such other person or body as may hereafter assume the responsibilities of the Lord Chancellor in this regard.

11. In all cases other than those falling under paragraphs 9 or 10, in determining whether the complaint discloses a prima facie case of professional misconduct or inadequate professional service and whether, if it does, it is apt for consideration by the Committee, the Commissioner shall consider whether::

(a) The complaint is frivolous or vexatious;

(b) The complaint for any other reason obviously lacks substance;

(c) the complaint has been made more than six months after the act or omission complained of or made three months after the conclusion of an investigation by the barrister's chambers of the same complaint¹ and the complaint is not of sufficient seriousness to justify² nor are there any exceptional circumstances which justify further consideration of the complaint despite the lapse of time since the matters complained of;

(d) The complaint cannot be properly or fairly investigated, or the barrister is for any reason unable fairly to respond to it;

(e) The complaint reveals a prima facie case of an infringement of a provision of the Code of Conduct specified in para 901 of the Code, but that infringement would not amount to professional misconduct or inadequate professional service;

(f) The complaint or its consequences are insufficiently serious to justify further action;

(g) For any other reason whatsoever the complaint is not apt for consideration by the Committee.

12. In order to reach his determination, the Commissioner may seek information or assistance, orally or in writing, as he thinks fit, from the complainant, the barrister, any potential witness, any member of the Committee, the Secretary or the Equal Opportunities Officers of the Bar Council or from any other person whom he considers may be capable of affording such information or assistance.

13. (a) If the Commissioner considers that the complaint raises a prima facie case of an infringement of a provision of the Code of Conduct specified in para 901.1 of the Code which does not amount to professional misconduct, he shall refer the matter to a barrister member of the Committee of no fewer than 2 years’ service on the Committee (including but not limited to the Chairman or Vice Chairman) (“the senior barrister member”). The Commissioner may recommend that all or any of the steps referred to in paragraph 15 below be taken, and the senior barrister member shall have the power to act upon such recommendation and to give any necessary directions to the Secretary, or to refer the complaint to the Secretary for further investigation or to the full Committee for consideration.

(b) If the Commissioner considers that the complaint referred to the barrister member under sub-paragraph (a) above raises a prima facie case of inadequate professional service, and is apt for consideration by the Committee, it shall be disposed of pursuant to paragraphs 18 et seq., but it shall not be referred to the Committee until after the senior barrister member has considered the question whether it also raises a prima facie case of professional misconduct.

(c) If in such a case the senior barrister member decides that the complaint does not raise a prima facie case of professional misconduct, the recommendation of the Commissioner shall not be implemented and no written warning shall be sent to the barrister and no fixed penalty shall be imposed for the infringement of the Code until after the complaint of inadequate professional service has been disposed of by the Committee or by an Adjudication Panel. The Committee and the Adjudication Panel shall have the power in such circumstances to direct that all or any of the Commissioner’s recommendations shall be implemented and/or that a written warning be sent to the barrister or that a fixed penalty shall be imposed for the infringement of the Code, or both, whether or not they dismiss the complaint of inadequate professional service.

14. (a) If the senior barrister member agrees with the Commissioner that the infringement of the Code referred to him under Paragraph 13(a) reveals no prima facie case of professional misconduct or inadequate professional service then, whether or not such recommendation has been made by the Commissioner, the senior barrister member may direct the Secretary that a written warning should be sent to the barrister, or that a fixed penalty for the infringement shall be imposed on him, or both, and he may also direct that some or all of the steps referred to in paragraph 15 be taken. Alternatively, he may determine that no further action shall be taken. If the complaint reveals a prima facie case of inadequate professional service, the senior barrister member shall refer the infringement of the Code to the Committee in order that it may be considered and disposed of at the same time as the complaint of inadequate professional service, in accordance with paragraph 13(c).

(b) If the matter is disposed of under sub-paragraph (a), then unless the complaint has revealed a prima facie case of inadequate professional service, the Commissioner shall dismiss the complaint and inform the complainant of the reasons for the dismissal and of any action taken against the barrister.

(c) If the senior barrister member disagrees with the Commissioner and considers that the infringement of the Code, by virtue of the matters specified in paras 901.3 or 902 of the Code, does constitute a prima facie case of professional misconduct, he shall direct that the matter be dealt with under paragraph 18, or, if it has already been investigated, refer the matter to the Committee for consideration.

15. In all cases other than those to which paragraphs 13 and 14 apply, if the Commissioner considers that the complaint fails to disclose a prima facie case of professional misconduct or inadequate professional service or that it is inapt for consideration by the Committee, he shall dismiss it, and shall notify the complainant of his decision and of his reasons for it. However, the Commissioner may recommend to the Committee that any or all of the following steps be taken, namely that a written warning be given to the barrister concerned, that the barrister should be directed to write an apology to the complainant, or that the barrister should be advised as to his future conduct, and the Committee shall have the power to act upon such recommendation if it considers it appropriate, even if the conduct of the barrister did not infringe the Code of Conduct. If such a recommendation is made, the Commissioner shall not dismiss the complaint until after the Committee has decided whether or not to act on his recommendation, and the Commissioner shall notify the complainant of any action which is to be taken against the barrister at the same time as he notifies him of the dismissal of the complaint.

16. If at any time in the course of his consideration of the complaint, it appears to the Commissioner that the complaint might be capable of resolution by agreement, and that it would be appropriate to resolve it in that manner, he may invite the complainant and the barrister concerned to attempt to conciliate their differences.

17. The Commissioner may at any time adjourn consideration of a complaint for such period as he thinks fit, whether while the complainant and the barrister attempt conciliation, during the currency of related legal proceedings or for any other reason.

18. If a complaint is not dismissed by the Commissioner following his initial consideration as aforesaid: (a) it shall be dealt with by the Secretary of the Committee in the manner set out in paragraph 25 et seq below.
(b) Following the completion of any investigation, the Secretary shall refer the complaint back to the Commissioner together with the results of such investigation and the Commissioner shall reconsider the complaint and the results and shall exercise the powers given to him by paragraph 19 et seq. below.

19. When a complaint is referred to the Commissioner following investigation, as set out in paragraph 18(b) above, the Commissioner shall consider whether, on the information now available to him, it discloses a prima facie case of professional misconduct or inadequate professional service and is apt for consideration by the Committee. In determining whether the complaint discloses a prima facie case of professional misconduct or inadequate professional service and whether it is apt for consideration by the Committee, the Commissioner shall consider the matters referred to in paragraph 11 above.

20. In order to reach his determination, the Commissioner may direct any further investigations to be made that he sees fit, and may seek further information or assistance, orally or in writing, as he thinks fit, from the complainant, the barrister, any potential witness, any member of the Committee, the Secretary or the Equal Opportunities Officers of the Bar Council or from any other person whom he considers may be capable of affording such information or assistance.

21. If the Commissioner decides on reconsideration of a complaint following investigation that the complaint raises a prima facie case of an infringement of a provision of the Code of Conduct specified in para 901.1 of the Code which does not amount to professional misconduct, he shall refer the matter to the senior barrister member and the matter shall be disposed of in accordance with paragraphs 13 and 14.

22. In all other cases, if the Commissioner decides on reconsideration of a complaint after investigation that a prima facie case of professional misconduct or inadequate professional service is not shown, or that the matter is inapt for consideration by the Committee, he shall dismiss the complaint, and shall notify the complainant and the barrister complained against of his decision and of his reasons for it. However in such circumstances the Commissioner may recommend to the Committee that any or all of the following steps be taken, namely that a written warning be given to the barrister concerned, that the barrister should be directed to write an apology to the complainant, or that the barrister should be advised as to his future conduct, and the Committee shall have the power to act upon such recommendation if it considers it appropriate, even if the conduct of the barrister did not infringe the Code of Conduct. If such a recommendation is made, the Commissioner shall not dismiss the complaint until after the Committee has decided whether or not to act on his recommendation, and the Commissioner shall notify the complainant of any action which is to be taken against the barrister at the same time as he notifies him of the dismissal of the complaint.

23. If the Commissioner does not dismiss the complaint following reconsideration, he shall refer the complaint to the Committee for consideration with his observations on it, if any. The Committee’s powers in relation to such a complaint shall be those set out in paragraphs 33 et seq below.

24. The Commissioner may reopen or consider a complaint which has been disposed of under paragraphs 13-15 or 21 or 22 above:

a. Following a recommendation of the Legal Services Ombudsman that he do so; or
b. Where new evidence becomes available to him which leads him to conclude that he should do so, or
c. For some other good reason.
Following such reconsideration he may take such further or different action as he thinks fit, as if the former decision had not been made

Investigation of complaints by the Secretary

25. (a) The investigation of complaints by outside persons under paragraph 18(a) above, or complaints which are re-opened or reconsidered by the Commissioner under paragraph 24 above, shall be carried out by the Secretary under the direction of the Commissioner or the Committee in such manner as hethinks fit.

(b) Any investigation of complaints raised by the Bar Council shall be carried out by the Secretary under the direction of the Committee in such manner as they think fit.

In directing the carrying out of such investigation, the Committee and the Commissioner shall have regard to the following provisions.

26. The complaint shall be sent to the barrister concerned together with a letter requiring him to comment in writing on the complaint and to make any written representations he sees fit as to his conduct or the services he has provided to the complainant. That letter shall be sent to the address notified by the barrister pursuant to paragraphs 202(d) of the Code of Conduct. Any relevant documents, information or comments obtained at that time by the Commissioner from the complainant and/or from any potential witness shall be made available to the barrister on request.

If no response is received within 28 days of the date of posting of such letter, the Secretary may proceed as if the barrister's response had been to deny the allegations made in the complaint in their entirety.

27. The complaint should normally also be sent to any solicitor or solicitor’s agent named on the form of complaint as having instructed the barrister, under cover of a letter seeking his comments upon the complaint. If the Commissioner or the Committee so directs, it shall also be sent to any other person whose name and address is provided by the complainant as a person able to assist the Commissioner or the Committee, under cover of a letter seeking his comments upon the complaint. 28. Any comments received by the Secretary from the barrister concerned in answer to a complaint or from a third party should normally be sent to the complainant, under cover of a letter seeking his response to those comments, but the Commissioner or the Committee may in the exercise of his or their discretion direct that this step be omitted or that some of the comments shall not be sent to the complainant if, for example, issues of privilege or confidentiality make it inappropriate.

29. If a response to the barrister’s comments is received from the complainant, and if the complaint is referred to the Committee at the conclusion of the investigation, then a copy of the complainant’s response shall be sent by the Secretary to the barrister concerned under cover of the letter notifying him that the matter is to be considered by the Committee.

30. The Secretary may enter into further correspondence with any of the parties whose comments have been sought, or any other party who the Secretary, the Commissioner or the Committee think capable of affording further assistance.

31. If a complaint is made by the Bar Council of its own motion, then upon completion of investigation by the Secretary the complaint shall be referred to the Committee together with the results of the investigation, for consideration under Paragraph 33.

32. (a) Complaints made by the Bar Council of a breach of paragraphs 901.2, 901.4, 901.5, 901.6 or 905(b)(c) or (f) of the Code of Conduct may be made the subject of a separate charge of professional misconduct without the requirement of any further investigation by the Secretary. However, the decision to prefer charges in respect of any such breach and as to the level of disposal shall be taken by the Professional Conduct Committee.

(b) In the event that another charge of professional misconduct is pending or to be brought against the barrister concerned, the Committee shall have the power to direct that the additional charge be brought before the same Tribunal or informal panel as is disposing of the original charge, even if the additional charge, by itself, may be regarded as insufficiently serious to merit disposal by a Tribunal of that level.

Powers and functions of the Committee

33. The powers of the Committee shall be as follows:

(a) to determine whether any complaint discloses a prima facie case of professional misconduct, and if so to deal with it in accordance with these Rules.

(b) to determine whether the complaint discloses a prima facie case of inadequate professional service by the barrister concerned and if so to deal with it in accordance with these Rules.

(c) to prefer charges of professional misconduct before Disciplinary Tribunals (as provided by the Disciplinary Tribunals Regulations at Annex K to the Code of Conduct) on behalf of the Bar Council, to refer to such tribunals any legal aid complaint relating to the conduct of a barrister and to be responsible for prosecuting any such charges or legal aid complaints before such Tribunals.

(d) to prefer and deal summarily with charges of professional misconduct in accordance with the Summary Procedure Rules forming Annex L to the Code of Conduct

(e) to act upon any recommendations of the Commissioner made under paragraphs 15 or 22 of these Rules;

(f) to raise complaints on behalf of the Bar Council and to direct the investigation of complaints raised by the Bar Council of its own motion;

(g) to take such other actions in relation to complaints or infringements of the Code of Conduct as are permitted by these Rules, and in particular Paragraph 35 below.

(h) to make recommendations on matters of professional conduct to the Professional Standards Committee, as the Committee may think appropriate.

(i) to make rulings on matters of professional conduct when the Committee considers it appropriate to do so.

(j) to exercise the power of the Bar Council under paragraph 108 of the Code of Conduct to grant waivers of the provisions of that Code either generally or in particular cases.

(k) to exercise the power of the Bar Council to designate Legal Advice Centres for the purposes of paragraphs 806-807 of the Code of Conduct.

34. The Committee shall consider complaints raised by the Bar Council of its own motion, and complaints and the results of investigations thereof referred to it by the Commissioner pursuant to paragraph 23 above, together with the Commissioner’s comments thereon, in such manner as it shall see fit, provided that save in the case of complaints made under paragraph 32, the Committee shall not make any finding that there is a prima facie case of professional misconduct or inadequate professional service by a barrister on the basis of any allegation by a complainant to which the barrister has not had a reasonable opportunity to respond.

35. If in the course of its consideration of a complaint (“the original complaint”) the Committee considers that there is any matter other than that complained of which might give rise to a prima facie case of professional misconduct or, where the original complaint is made by or on behalf of the lay client, a prima facie case of inadequate professional service, the Committee may raise a complaint about that matter on behalf of the Bar Council (“the new complaint”). In such event, unless the new matter falls within paragraph 32 or the subject-matter of the new complaint has already been investigated in the course of investigations into the original complaint:

(a) the new complaint shall be investigated by the Secretary in the manner set out in paragraph 25 et seq. above,

(b) the Committee shall not proceed to consider whether the new complaint discloses a prima facie case of professional misconduct or inadequate professional service unless and until the barrister concerned has been given the opportunity to comment in writing on the matter complained of in the new complaint. The Committee shall take any comments made by the barrister into consideration when it determines whether the new complaint discloses a prima facie case of professional misconduct or inadequate professional service.

(c) the Committee may defer further consideration of the original complaint pending the results of any investigation of the new complaint

36. Upon considering any complaint, and subject to the provisions of paragraph 37 below, the Committee may:

(a) Dismiss the complaint, provided that the majority of the Lay Members present at the meeting consents to such dismissal³

(b) Determine that no further action shall be taken on the complaint.

(c) At any time postpone consideration of the complaint, whether to permit further investigation of the complaint to be made, or during the currency of related legal proceedings, or for any other reason it sees fit;

(d) If the complaint does not disclose a prima facie case of professional misconduct, but the barrister’s conduct is nevertheless such as to give cause for concern, draw it to his attention in writing. The Committee may in those circumstances, either before or after the dismissal of the complaint of professional misconduct do any or all of the following:

(i) direct the barrister to apologise in writing to the complainant; (ii) advise him as to his future conduct either in writing or by directing him to attend on the Chairman of the Committee or on some other person nominated by the Committee, to receive such advice;

(iii) in a case where a prima facie case of inadequate professional service is disclosed by the complaint and condition (i) in paragraph (e) is satisfied, direct that the complaint be referred to an Adjudication Panel to be dealt with in accordance with the Adjudication Panel Rules (Annex P to the Code of Conduct).⁴

(iv) In a case where there has been an infringement of the provisions of paragraph 901.1 of the Code, direct the Secretary to administer a formal written warning and/or a financial penalty for the infringement.

If the complaint of professional misconduct was not dismissed before any such direction or advice was made or given, the Committee may thereafter dismiss that complaint. If the Committee considers that the circumstances of the complaint are relevant to the barrister’s position as a pupil supervisor, it may notify the barrister’s Inn of its concern in such manner as it sees fit.

(e) If a prima facie case of inadequate professional service is disclosed and the following conditions are satisfied:

(i) the complainant is the barrister’s lay client or his duly authorized representative, or in the case of an employed barrister, the person to whom he has supplied the professional service in question, and

(ii) if a prima facie case of professional misconduct is also disclosed by the complaint, the matter is in the opinion of the Committee not serious enough to warrant treatment under sub-paragraphs (g) or (h) below

the Committee may direct that the complaint be referred to an Adjudication Panel to be dealt with in accordance with the Adjudication Panel Rules (Annex P to the Code of Conduct).

(f) If a prima facie case of professional misconduct (whether with or without inadequate professional service) is disclosed but in the opinion of the Committee the matter is not serious enough to warrant treatment under subparagraphs (g) or (h) below, direct that the complaint be dealt with by informal attendance by the barrister to explain his conduct following the procedure set out in paragraphs 52 et seq below

(g) if a prima facie case of professional misconduct (whether with or without inadequate professional service) is disclosed but in the opinion of the Committee there are no disputes of fact which cannot fairly be resolved by a summary procedure, provided it is satisfied that the powers of a summary procedure are adequate to deal with the gravity of the issues, deal with the matter summarily in accordance with the Summary Procedure Rules (Annex L to the Code of Conduct).

(h) If a prima facie case of professional misconduct (whether with or without inadequate professional service) is disclosed in circumstances where in the opinion of the Committee the matter should not be disposed of under sub-paragraphs b, e, f, or g above, direct that the complaint should form the subject-matter of a charge before a Disciplinary Tribunal

37 If the subject matter of the complaint involves a conviction for an offence of dishonesty or deception or some other serious arrestable offence (as defined by section 116 of the Police and Criminal Evidence Act 1984) the Committee shall direct that the complaint should form the subject-matter of a charge before a Disciplinary Tribunal.

38. In all other cases where a prima facie case of professional misconduct is disclosed, in determining what is the appropriate means of disposal under paragraph 36 above, the Committee shall be entitled to take into consideration any matters which it considers relevant, including but not limited to:

(a) the barrister’s previous conduct (including any disciplinary findings made against him as a student by his Inn, or any disciplinary findings made against him by any other professional body);

(b) the means by which any previous complaints against him have been disposed of;

39. If the complaint is dismissed, and/or is disposed of under paragraph 36 (b) or (d) of these Rules, the Secretary shall notify the complainant and the barrister complained against of the manner of disposal of the complaint and the reasons for such disposal.

40. If the Committee considers that the complaint discloses a prima facie case of inadequate professional service or of professional misconduct against a registered European lawyer, the Secretary shall:

(a) inform the professional body of which the registered European lawyer is a Member in his home Member State;

(b) offer that professional body the opportunity to make representations to the Adjudication Panel, Informal Hearing, Summary Tribunal or Disciplinary Tribunal to which the complaint has been referred;

(c) inform that professional body of findings made by any panel under these Rules or under Annexes K, L,M or N of this code.

41. The Committee may reopen or reconsider a complaint which has been disposed of, unless it has been disposed of by a Disciplinary Tribunal or Summary Tribunal,

(a) following a recommendation of the Legal Services Ombudsman that they do so, or

(b) where new evidence becomes available to the Committee which leads them to conclude that they should do so, or

42. Following such reopening or reconsideration, the Committee may take any further or different action it thinks fit, as if the former decision had not been made, provided that if a direction under paragraph 28(h) or 30 above has been given, and charges have been forwarded to the Clerk and served on the Defendant, the Committee's actions shall be confined to instructing counsel for the Bar Council to

(a) offer no evidence on a charge, or

(b) apply to the Directions Judge for the making of additions to or amendments of a charge.

43. (a) The Bar Council shall respect the confidentiality of complaints. The Bar Council shall not disclose the fact that a complaint has been made or details of the complaint or its disposal save as specified in this paragraph.

(b) Disclosure may be made:

(i) for the purpose of investigating the complaint;

(ii) for the purpose of keeping the complainant and the barrister informed of the progress of the complaint;

(iii) where the complainant and the barrister consent;

(iv) for the purposes of Paragraph 40 of these Rules;

(v) where the publication of a finding is required by the provisions of the Disciplinary Tribunals Regulations 2004 or the Summary Procedure Rules or paragraph 63 and 64 of these rules;

(vi) subject to paragraph (c) below in response to a request from the selection panel or a member of its secretariat in respect of an application by a barrister for silk or from the Lord Chancellor or officials of the Department of Constitutional Affairs, or any successor body responsible for the appointment of judges, in respect of an application for judicial appointment or a request from some other body for a Certificate of Good Standing in respect of a barrister or from one of the Inns of Court in respect of an application from a barrister to become a pupil supervisor;⁵

(vii) for any other good reason

(i) If any complaint has been made against the barrister concerned which has not been dismissed by the Commissioner, disposed of by the Committee under paragraph 36(a), d)or (e) of these Rules, or dismissed by any Informal Hearing or Summary or Disciplinary Tribunal or by any other body to which it may have referred by the Committee, the Bar Council shall simply indicate that a complaint has been received which has not been dismissed; and

(ii) if a finding of professional misconduct has been recorded against the barrister concerned, the Bar Council shall disclose the finding and the penalty;

(iii) if the request is from the selection panel or a member of its secretariat in respect of an application by a barrister for silk or if the request is from one of the Inns of Court in respect of an application by a barrister to become a pupil supervisor⁶, if a finding of inadequate professional service has been recorded against the barrister concerned, the Bar Council shall disclose the finding and penalty.

(d) In the case of any charge of professional misconduct that is determined by a Disciplinary Tribunal under the Disciplinary Tribunal Regulations 2004 or by the Visitors under the Visitors Rules 2005, unless the Tribunal or Visitors (as the case may be) direct otherwise, where a Tribunal or Visitors has found that the charge has been proved, the Bar Council shall publish on the Bar Council’s website the name of the barrister against whom that finding was made, the nature of that finding and the sentence of the Tribunal.

Disciplinary charges

44. If the Committee directs under paragraph 36(h) or 37 above that a complaint shall form the subject matter of a charge before a Disciplinary Tribunal, the following paragraphs shall have effect.

45. The Committee may direct that the prosecution of the charges be expedited if it considers that one or more of the following conditions are satisfied:

(a) the facts of the complaint are unlikely to be disputed (for example because it involves a criminal conviction),

(b) witnesses are unlikely to be called for the hearing,

(d) there is some other good reason for expedition.

46. When the Committee has directed that a complaint shall form the subject matter of a charge before a Disciplinary Tribunal or a Summary Tribunal, the Secretary shall be responsible for preferring the charge on behalf of the Bar Council, subject to the direction of the Chairman of the Committee. The investigations officer at the Bar Council shall be responsible for the conduct of any disciplinary proceedings brought on behalf of the Bar Council. The investigations officer shall arrange for the appointment of counsel to settle the charge and to present the case before the Tribunal, and may arrange for the appointment of a solicitor or such other person as may be necessary to assist counsel and prepare the case. Any charges shall be brought in the name of the General Council of the Bar of England and Wales; instructions shall be given to the investigations officer and/or to counsel by the Secretary on behalf of the Bar Council.

47. Counsel shall settle such charges as he considers appropriate founded upon the facts or evidence from which the complaint arose, and any further or other matters which have been revealed by investigations directed by counsel, the investigations officer, the Secretary or the Committee. Such charges may be of professional misconduct and, where appropriate, of inadequate professional service, save that no charges of inadequate professional service shall be settled unless the complainant is the barrister’s lay client or his duly authorised representative or, in the case of an employed barrister, the person to whom he has supplied the professional services in question.

48. It shall be the responsibility of the investigations officer subject to the supervision of the Secretary:

a. to forward the charge to the Clerk to the Tribunal, as required by Regulation 5 of the Disciplinary Tribunal Regulations, together with the other documents specified therein, and

b. to make any necessary administrative arrangements for the summoning of witnesses, the production of documents, and generally for the proper presentation of the case on behalf of the Bar Council before the Tribunal.

49. Enquiries shall be made of the Under- or Sub-Treasurer of the barrister's Inn and of the Bar Council concerning any previous findings of misconduct against him, so that this information may be available to be placed before the Tribunal if any charge against him is found to have been proved.

50. If a barrister is a member of more than one Inn, references in these Rules to his Inn shall mean the Inn by which he was called, unless he is a Bencher in which case his Inn shall mean the Inn of which he is a Bencher.

51. The Committee may, with the approval of the Finance and the Professional Standards Committees, authorise the Secretary or investigations officer in an appropriate case to arrange that Counsel, or any other person appointed pursuant to paragraph 46 above, be paid reasonable remuneration for work done in connection with the preparation of and presentation of the case before the Tribunal, including any advisory work . The cost of such remuneration shall be borne by the Bar Council.

Informal Hearings

52. Where the Committee decides under paragraph 36(f) above that a complaint should be dealt with informally it shall direct that the barrister attend upon a panel appointed by the President consisting of two barristers and two lay representatives (none of whom are members of the Committee or of the Bar Council or any of its Committees or who were not members of the Committee at any time when the complaint being dealt with by the panel was considered by the Committee) Unless the panel otherwise decides, the senior barrister member will be the chairman of the panel.

53. When the Committee directs such attendance it shall specify

(a) what, in summary form, are the matters upon which the Committee has found a prima facie case of misconduct to be disclosed and on which the barrister's explanation of his conduct is required, and

(b) whether, on the information available to them, the Committee also regard a prima facie case of inadequate professional service as having been disclosed, and if so what, in summary form, are the matters arising in that regard which the barrister will also be asked to explain.

54. The Secretary shall notify both the barrister and the complainant of the matters specified in paragraph 53. As soon as practicable thereafter he shall send them a bundle of the papers to be considered by the panel and shall invite them within 14 days (which may be extended with the permission of the Chairman of the panel) to comment in writing on any of those matters or to send other document to which they wish the panel to have regard.

55. The Secretary shall make such further enquiries as he sees fit, or as are directed by the Chairman of the panel to assist the deliberation of the panel, such as whether the complainant claims to have suffered financial loss as a result of the conduct complained of, and if so the exact nature and amount of that claimed loss and the evidence available to support the claim, and from the barrister the nature of the work he carried out for thecomplainant out of which the complaint arose, the fee rendered for such work, and whether or not such fee has been paid.

56. Subject to the direction of the Chairman of the panel:

a. the Secretary shall keep the complainant informed of the progress of the complaint and of any further documents and other information to be considered by the panel;

b. the Secretary shall, so far as practicable, require the barrister and afford the complainant an opportunity to comment in advance of the hearing on any such information or documents.

57. The barrister shall attend on the panel at the day and time arranged, and shall provide to the panel orally such information as he wishes to put before them in connection with his conduct in relation to the matters specified, and shall answer so far as he is able such further questions as the panel may put to him which may relate to any aspects of the conduct complained of. The panel shall consider whether to adjourn the hearing in order to enable the complainant to comment on any information provided by the barrister at the hearing which had not previously been disclosed by him.

58. Following such hearing, the panel may reach the following decisions:

(a) It may conclude that neither professional misconduct nor inadequate professional service has been established by the complainant, whereupon it shall dismiss the complaint.

(b) It may conclude that, notwithstanding the barrister’s explanation, professional misconduct has been established, in which case (unless it refers the matter back to the Committee for reconsideration under sub-paragraph (e) below), it may conclude that no further action shall be taken on the complaint or do any or all of the following⁷:

(i) Give the barrister advice as to his future conduct;

(ii) Admonish him; or

(ii) Direct the barrister to apologise in writing to the complainant.⁸

(c) Regardless of the conclusion reached in relation to the barrister's professional conduct, the panel may conclude that a barrister has provided inadequate professional service in respect of the subject-matter of the complaint, provided provided always that the complainant is the barrister’s lay client or his duly authorised representative or, in the case of an employed barrister, the person to whom he has supplied the professional service in question.

(d) It may conclude that the barrister has infringed a provision of the Code referred to in paragraph 901.1 of the Code but that such infringement did not amount to professional misconduct. In such circumstances, and whether or not it concludes that inadequate professional service has been established, the panel may direct the Secretary that a written warning be sent to the barrister or that a financial penalty be imposed on him for the infringement of the Code or both.

(e) Whatever conclusion it may reach, the panel may refer any issue of policy which arises to the relevant Committee of the Bar Council.

(f) The panel may refer a matter back to the Committee for reconsideration if it considers that its powers are not sufficient to deal with the gravity of the complaint revealed at the hearing or that other issues are raised which require further consideration by the Committee.

59. The panel shall provide reasons for reaching its decision.

60. If the panel is not unanimous on any issue, the finding made shall be that of the majority of them. If the panel is equally divided, the burden of proof being on the complainant the finding made shall be that most favourable to the barrister.

61. If a finding of inadequate professional service is made under paragraph 58(c), the panel shall consider what remedy should be granted to the complainant in respect of such inadequate service. The panel may:

(a) determine that it is not appropriate to take any action in respect of the complaint,

(b) adjourn consideration of the remedy to permit investigation or further investigation of the consequences of the inadequate professional service for the complainant and reconvene the panel when the results of such investigations are known,

(d) direct the barrister to repay or remit all or part of any fee rendered in respect of the inadequate service,

(e) direct the barrister to pay compensation to the complainant in such sum as the panel shall direct not exceeding £15,000.⁹

(f) direct the barrister to complete continuing professional development of such nature and duration as the Tribunal shall direct (in addition to any compulsory continuing professional development requirements to which he is subject) and to provide satisfactory proof of compliance with this requirement to the Committee.

In determining whether any sum is to be paid under paragraph (e) hereof, or in fixing the amount of such sum, the panel shall in particular have regard to any loss suffered by the applicant as a result of the inadequate professional service, the availability to the complainant of other forms of redress, to the gravity of the conduct complained of, and to the fee claimed by the barrister for the inadequate service.

62. An appeal shall lie at the instance of the barrister from any decision of a panel that a barrister has provided inadequate professional service, and against any decision as to the remedy to be granted to the complainant for such service in the same manner as an appeal lies from a decision of an Adjudication Panel in respect of the same matters.

63. The Secretary shall notify both the complainant and the barrister of the decision and, if the complaint is dismissed, of the reasons for such dismissal.

64. If the panel considers that the circumstances of the complaint are relevant to the barrister's position as a pupil supervisor, it may notify the barrister's Inn of its concerns in such manner as it sees fit.

Appeals from written warnings and financial penalties

65. A barrister’s appeal in accordance with paragraph 901.3 of the Code from a written warning or financial penalty imposed by the Bar Council for any failure to comply with the provisions identified in paragraph 901.1 of the Code shall lie to an Appeal Panel consisting of a Queen’s Counsel, a barrister and two lay representatives. The Queen’s Counsel shall act as chair of the Appeal Panel.

66. An appeal shall be made by the barrister sending to the Secretary within the time limited by Paragraph 901.3 of the Code a notice identifying the warning or financial penalty appealed against, the decision the barrister contends for, the grounds of such appeal and a statement of whether or not the barrister requires his appeal to be disposed of at an oral hearing.

67. The notice shall be accompanied by the sum of £100 payable to the Bar Council to defray expenses.

68. At least 5 working days before the time set for the appeal, the Secretary will provide each member of the Panel and the barrister with a paginated bundle of the correspondence and other documents on its files relating to the imposition of the written warning and financial penalty.

69. On such an appeal:

(a) the barrister may be represented;

(b) the Appeal Panel shall decide whether to set aside the written warning or financial penalty or both, as appropriate;

(c) if the Appeal Panel shall allow the appeal in whole or in part, the Panel may direct that the sum paid under paragraph 2 above shall be refunded: but the Appeal Panel shall have no power to award costs.

Definitions

70. In these Rules unless the context otherwise requires

(a) the term “barrister” shall be interpreted as extending to a person falling within the class described in Paragraph 1(b) of these Rules.

(b) Any term defined in the Code of Conduct shall carry the same meaning as it does in Part X of the Code of Conduct.

(d) Any reference to the masculine gender includes the feminine and the neuter, and any reference to the singular includes the plural, and in each case vice versa.

Commencement and Transitional Provisions

71 (a) These Rules will come into effect on 1st October 2005. They shall apply to all complaints whenever raised save that:

(i) no finding of inadequate professional service may be made against a barrister in respect of any conduct of his which took place before 13th July 1996;

(ii) no direction that a barrister pay compensation to the complainant in respect of inadequate professional service in a sum exceeding £5,000 may be made against a barrister in respect of any conduct of his which took place before 1 July 2008;¹⁰

(iii) no direction by a panel, in a case where professional misconduct has been established , that a barrister apologise in writing to the complainant may be made against a barrister in respect of any conduct of his which took place before 1 July 2008.¹¹

(b) Any step taken in relation to any complaint prior to 1st October 2005 pursuant to the provisions of the Rules then applying shall be regarded, unless otherwise decided, as having been taken pursuant to the equivalent provisions of these Rules.

¹Amended 1st May 2008
²Amended 1st December 2005
³Amended 1st January 2006
⁴Effective from 1st July 2008
⁵Effective from 1st July 2007
⁶Effective from 1st July 2007
⁷Effective from 1st July 2008
⁸Effective from 1st July 2008
⁹Effective from 1st July 2008
¹⁰Effective from 1st July 2008
¹¹Effective from 1st July 2008