LONDON (Within the Law) - To what extent should regulators delve into the personal life of lawyers? That was the question at the heart of a review into the decision of a tribunal to disbar a barrister over a dispute with the father of her children.
The High Court ruled that the tribunal had been correct to disbar a lawyer, known as Ms X, despite misconduct relating to her personal life. Mr Justice Bourne said her actions would have been misconduct in a professional setting and the Bar tribunal was right to take action.
The tribunal focused on her conduct during court proceedings about payment for her children’s education and an application by Ms for non-molestation orders. Mr X complained to the Bar Standards Board (BSB) about Ms X’s conduct in those proceedings.
The first tribunal found her guilty on a total of four charges across two cases.
- Charge 1: She had misled the court about Mr X’s receipt and/or knowledge of a draft order.
- Charge 2: She failed to comply with four court orders.
- Charge 3: She misled the court by telling the judge that a hearing had been listed on 17 June 2015 when it had not.
A second disciplinary case added charge 4, that she made a number of applications which were without merit. This led to the imposition of the family law equivalent of a civil restraint order.
She was found to have been in breach of core duty 5 (CD5) not acting in a way which diminishes trust and confidence in the profession, and rule rC8 which states:
“You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).”
She appealed on the grounds that conduct in a barrister’s private life will not usually be treated as a breach if it unless it involves abuse of their professional position or committing a non-minor criminal offense.
However, in his judgement, Mr Justice Bourne said: “It seems to me that, applying the guidance, conduct in a person’s private or personal life is in general not likely to be treated as a breach of CD5 but nevertheless can be so treated for good reason.
“The reason could be that the conduct, though personal or private, clearly is or is analogous to conduct which contravenes other provisions of the code.”
He added that: “In my judgment, it was open to the tribunal to rule that conduct of that kind was professional misconduct though committed in a personal capacity if, in fact, it infringed a provision such as CD5 or rC8.”
The court also rejected arguments that Ms X did not have a fair trial because she was not given funding to be represented before the tribunal. The judge said she had not proved that the proceedings had been unfair because of a lack of funding.
However, he did overturn charge 3 of the tribunal ruling that it was not possible to prove that she was the author of the communication which misled the court.
This, though, in itself was not a reason to overturn the decision to disbar as the tribunal had not cited it as an aggravating factor in relation to the other two charges.
(Written by Tom Cropper, edited by Klaudia Fior)