The content hereunder is a brief topical address on an identified issue I humbly deem goes to the core of the conduct of barristers in their respective practices; regulation or the lack of it. Predominantly the situation in post-colonial jurisdictions such as Mauritius may be that barristers work with little or no fear of being reprimanded by way of disciplinary sanction even where they may well realise being at odds with the very code of ethics they swear by.
Whilst there is extensive concerted effort from all quarters including the judiciary to ensure that such situations do not arise; the cure may well be within the realm of the legislator. Would the implementation of one sole independent regulator vested with wide powers to fiercely sanction any rogue legal practitioner be a tenable solution?
Aside from the peculiarity post-colonial jurisdictions have in their evolution, and whilst there would be constant considerations such as cost, transparency, independence, efficiency and sustainability; mirroring the practice in the UK since the setting up of the Bar Standards Board (BSB) in 2006 ought not be discounted.
Although many did not see it as being the way forward at the time it was set up, the BSB comes as a result of the overriding public interest. The scope of its powers is not limited to the setting of standards for the conduct of barristers but it also monitors the quality of the service provided by barristers such that it is empowered to authorise a barrister to practice. It follows that it is equally involved in the process leading to barristers becoming disbarred. In furtherance to its objectives, it sets education and training requirements and is also involved in the process of examining prospective barristers to the Bar of England and Wales.
Whilst the BSB effectively acts as a complainant against any defaulting barrister, it is actively involved in the process leading to disciplinary sanctions being taken against barristers before the Disciplinary Tribunal. The Bar Tribunals and Adjudication Service (BTAS) acts as an independent body and sits as a three-person tribunal hearing matters where the BSB will act as the complainant. The BTAS is strictly regimented such that it replicates any adjudicatory process before a court of law.
The BTAS acts in line with BSB Sentencing Guidance such that it can only make a motivated finding where sanctions range as follows: giving advice, giving warnings, impose completion of CPD training hours, impose the duty to carry out public access work and suspend barristers. Where the gravity of the offence is strenuous, a five- person panel hears the case for professional misconduct at the criminal standard of proof. Finally, as a means of portraying my views above, I have included a table as extracted from the BSB website with its determination on misconduct. Should this not be the way forward in Mauritius too?
|Counsel||Driving motor vehicle whilst disqualified||3 Months Suspension – Deferred for 12 Months.|
|Counsel||Convicted of five breaches of a Restraining Order imposed by Magistrates Court||Reprimanded.|
|Counsel||Conspiracy to defraud||Disbarred.|
|Counsel||Dishonestly failing to inform Chambers of fees received on public access work||Disbarred. 2 x 3 months Suspension [concurrent]. Suspension of Practising Certificate from the 22nd May 2017.|
|QC||Making unnecessary remarks on victim||Reprimanded. Ordered to attend an “Advocacy and the Vulnerable” training session.|
|Counsel||Failure to provide BSB with information pertaining to a complaint made against him||12 Months Suspension on each charge (24 months in total).|
|Counsel||Failure to respond to enquiries by email, letter and telephone between March – August 2016 in relation to her bankruptcy||Fined £1000.|
|Counsel||Pleaded guilty and convicted for possession of class B drug and convicted of intent to supply||3 Years Suspension.|
|Counsel||Failure as Head of Chambers to take all reasonable to ensure that the affairs of chambers fairly and equitably for all barristers and pupils||Reprimanded. Fined £2000. Costs £65.86.|
|Counsel||Made sexual advances to Ms X by repeatedly touching and stroking her thigh without her consent.||Reprimanded / Fined £2000.|
|QC||Reputable QC holding out as UK’s top murder barrister; top protest case barrister and top terrorism barrister.||Reprimanded/ Fined £1000|
|Counsel||Failure to act conscientiously and found to have the mens rea in providing the wrong legal advice.||Disbarred. Fined £200 and £500.|
|Counsel||A series of offences since 2015, involving failure to service lay client correctly||Suspended for a total of 27 months. Permanently prohibited from accepting or carrying out Public Access instructions.|