Judgement day for barristers

The new Bar Council complaints system is as complex as it is controversial.

Scheduled for an April launch, the scheme faces the difficult task of keeping both the public and barristers happy. And the Bar Council anticipates that the publicity surrounding the setting up of the system means it will be inundated with complaints.

At the heart of the system are the new lay complaints commissioner, who will oversee complaints of professional misconduct, and a new disciplinary charge of providing inadequate professional services.

All complaints dating back to 13 July 1996 will now come through complaints commissioner Major General Michael Scott, who was selected from 150 applicants for the £60,000-a-year job.

Scott, who will retire from the army to take up his new post in two months' time, will consider whether to dismiss complaints, attempt to instigate conciliation between the barrister and client, or to refer the matter to the Bar's professional conduct and complaints committee (PCC).

The PCC is made up of 40 barristers, appointed by the Bar Council chair, and two lay people, who Scott will appoint. The commissioner will sit in on PCC meetings but will have no final say on whether or not to proceed with the complaint. However, the two lay people will be able to veto any decision by the barristers.

Decisions on complaints by the PCC will be split into two categories with two different sets of remedies. “We are distinguishing between inadequate professional services and misconduct,” says Bar Council professional standards secretary Mark Stobbs.

If the PCC decides a barrister is answerable for inadequate professional services, relating to work outside the courtroom, he will have to appear before an adjudication panel of two barristers and two lay people. The barrister will then be required to apologise formally to a client, reduce or repay the fees, or face a maximum £2,000 fine. All three or just one sanction may be applied.

The idea is to create what amounts to a small claims tribunal, although complainants are free to pursue further legal action in the courts.

If a barrister is found to be answerable for misconduct he or she faces going before a disciplinary tribunal chaired by a circuit judge, three barristers and one lay representative. But if the facts of the complaint are not in dispute a summary hearing of four barristers and one lay representative is held.

Barristers facing either type of hearing can be disbarred but not fined. The jealously guarded principle of barristers' immunity, which means they cannot be sued in the courtroom, is behind this policy. It was feared a fine would open the way for barristers to be sued later for court work.

Those whose misconduct is deemed minor will appear before a hearing of one lay person and three barristers for what is effectively a 'telling-off'.

The new system has already attracted complaints. Angry barristers demanded that the compensation level for clients be capped at £2,000 and, following a campaign against the new system by Ronald Thwaites QC, who heads 10 King's Bench Walk, the complaints procedure was unconvincingly endorsed in a 55 per cent to 45 per cent vote late last year.

Despite the appointment of a non-legal independent commissioner, barristers still dominate the disciplinary process. Stobbs says there is a need for barristers to be judged by their peers and an average of 400 complaints a year means there is a need for 40 barristers on the PCC to examine the issues and report on them to the committee.

Under the old system, a fifth of those 400 complaints came from unhappy criminal defendants, while family litigants and those who could not get their case taken on were also frequent complainants. Around 70 per cent of complaints were dismissed, while the rest were heard before disciplinary, summary or tribunal hearings with an average of just three barristers being disbarred each year.

The system has a difficult task ahead as barristers and consumer groups, from their distinctly different perspectives, wait to be convinced that it will ensure that justice is done.