A stranger who revealed herself as one of the many mysterious anonymous and silent consumers of my outpourings has given me a useful headsup which I hereby pass on to all of you. The Bar Standards Board — an independent entity hived off from the English Bar of old in the name of further dismantling of self-regulation of the profession — has published a guideline for the disposition of disciplinary complaints against barristers. An interesting sanction available to the Board’s disciplinary bodies is a requirement to take a test in relation to professional ethics.
It is an impressive document. The bit about ‘Purposes and Principles of Sentencing’ is set out below, along with the couple of paragraphs about character evidence, with the sentiments of which I agree. It is surprising to me that the guideline sentence for a criminal conviction for drink driving involving an element of dangerous driving is a suspension from practice of up to 3 months and a fine of the equivalent of a few thousand dollars. The guide also suggests that disbarment should be seriously considered in each case where a barrister is proven to have been dishonest. In general, my impression is that the ‘sentencing’ aspirations are somehwat harsher than Victorian practice, at least until a few years ago (I confine my comments to Victoria since I suspect New South Wales’s Bureau is harsher than Victoria’s, especially when it comes to striking people off the roll or cancelling practising certificates).
There are a lot of professional disciplinary hearings happening around Australia. My guess is that there is inadequate consistency between the decisions of different decision makers within the same body, and extraordinary discrepancies between decisions of different professions’ Bureaux de Spank. It often seems to me, too, that wealthy and/or well-connected professionals who are found to have done outrageous things get off too lightly, while others who have been unlucky enough to get caught up in a complaint end up much worse off than a serious criminal who (i) often gets free lawyers, (ii) does not have to pay the prosecution’s costs, (iii) is protected by the rules of evidence, (iv) is entitled to decline to incriminate himself, and (v) often gets a suspended sentence. There is very little in the way of widely available scholarship on professional discipline in Australia, and apart from the odd rumbling on this blog, I have never seen any comparison between the criminal and professional disciplinary justice systems.
‘Section 3 – Purpose and principles of sentencing
3.1 The purposes of applying sanctions for breaches of the Code are:
a) To protect the public and consumers of legal services;
b) To maintain high standards of behaviour and performance at the Bar;
c) To promote public and professional confidence in the complaints and disciplinary process.
3.2 The primary purpose of imposing sanctions is to protect the public. This is of paramount importance and should be the fundamental guiding factor when considering what sanctions to impose. However, in fulfilling the other purposes it is also important to avoid recurrence of the behaviour by the individual as well as provide an example to other barristers in order to maintain public confidence in the profession. Decision makers must take all of these factors into account when determining the appropriate sanction to be imposed in an individual case. Decision makers should also bear in mind that sanctions are not intended to be punitive in nature but nevertheless may have that effect.
3.3 Deterrence and upholding standards: in some cases, the sanction imposed may be necessary to act as a deterrent to other members of the profession. Therefore, when considering a sentence, it may be necessary not only to deter the individual barrister from repeating the behaviour, but also to send a signal to the profession and the public that the particular behaviour will not be tolerated. A deterrent sentence would be most applicable where there is evidence that the behaviour in question seems to be prevalent in relation to numbers of barristers within the profession.
Proportionality
3.4 In deciding what sanctions (if any) to impose, the decision maker should ensure that the sanctions are proportionate, weighing the interests of the public with those of the practitioner. Proportionality is not a static concept and will vary according to the nature of the breach and the background of the individual barrister. For example, a first time breach of the Continuing Professional Development requirements would rarely, if ever, warrant a suspension or disbarment but a similar breach, having been committed many times without remorse or any attempt to remedy the situation, might warrant consideration of suspension or disbarment. Repeated breaches of relatively minor provisions of the Code may indicate a significant lack of organisation, integrity, or insight on the part of the barrister which could represent a risk to the public and undermine confidence in the profession.
3.5 In order to ensure that any sanction imposed is proportionate to the seriousness of the breach of the Code, decision makers should consider all the circumstances of the case including the following:
• the seriousness of the breach;
• whether the breach may have an impact on the general reputation of the Bar;
• whether the breach was intentional;
• whether the breach has lasting consequences;
• any aggravating or mitigating factors relevant to the conduct in question (see Annex 1);
• the personal circumstances of the individual barrister;
• the previous professional history of the barrister, in particular whether the barrister is of previous good professional standing; and
• to a limited and cautious extent, any character references or testimonials provided by the barrister (see paragraphs 7.5-7.6 below).
Consistency
3.6 To maintain confidence in the complaints and disciplinary system, the sanctions imposed in any individual case should be consistent with, although not necessarily the same as, other sanctions imposed for a similar breach in similar circumstances. It is therefore important that decision makers take account of previous decisions while still maintaining an independent approach to individual cases. The BSB has developed a “Sentencing Database” that will, over time, assist decision makers in determining whether a particular sanction is consistent with previous decisions and will also assist the BSB/COIC in monitoring consistency. Relevant reports from the database will be made available to panels, barristers and the public, although the database will only provide information on sanctions imposed after the introduction of the Sanctions Guidance in March 2009.’
‘Character evidence
7.1 Barristers are entitled, as part of their mitigation, to put forward character references/witnesses to support their submissions. However, while such evidence can be relevant to the sanctions imposed, it should be treated with caution and panels should be wary of becoming distracted from the main issues by an abundance of character evidence. The fact that a barrister was previously of “good character” and has a good reputation, can only go so far in mitigating his/her behaviour and the more serious the breach of the Code, the less weight should be attached to character evidence. The emphasis should be on the nature of the breach of the Code and the circumstances in which the breach occurred.
7.2 If the character evidence indicates that the person providing it knows the barrister well and has a clear basis for assessing that the behaviour in question was a genuine anomaly/one-off then some weight should be given to it. However, if the character evidence indicates that the person supplying it can only have limited direct knowledge of the barrister, then it should be treated with caution and it may be that little or no weight can be given to it. The general approach should be that character evidence is treated with caution and should not unduly affect the sanctions imposed: a person of good character and impeccable reputation can still commit breaches of the Code that are serious and warrant the same sanctions as any other barrister.’
