Barristers fined €50,000 last year

Fines of €50,000 were imposed on barristers for professional misconduct last year, but the reasons for the findings and the names of the individual lawyers have not been published.

The annual report of the Barristers Professional Conduct Tribunal shows that 50 new complaints were made by the public against barristers in 2013. Of these, 15 claimed individual barristers were not following instructions from their clients and 11 alleged undue pressure to settle cases.

Twenty complaints related to opposition barristers, with the report noting that in some cases the complainant may have “misunderstood the role of opposing or prosecution counsel”.

The report does not outline individual decisions, identify any of the barristers involved or give details about the nature of the successful complaints. Fines of €50,000 were imposed by the tribunal in 2013 and one barrister was “advised as to future conduct”, it states.

Private proceedings

All proceedings of the nine- member tribunal are heard in private and all documents connected with alleged misconduct cases are confidential. The tribunal has discretion on disclosure of its decisions.

Making general observations on complaints received by the tribunal, the report, written by chairman Patrick McCann SC, says that interactions between barristers, solicitors and clients about pre-trial negotiations are "often a source of dissatisfaction".

“It would appear to be often the case that a barrister who is clear about the weaknesses of a client’s case is sometimes perceived as having ‘gone over to the other side’ or, as more than one complainant described it, ‘playing for the other team’,” the report states.

“On the other hand, if a barrister did not identify the weaknesses in a client’s case, he or she could legitimately be criticised for not giving his client full, fair and reasonable advice.”

The report says clients often perceive a listing of challenges or imperfections in their cases as amounting to coercion. “The tribunal considers there is a difference between a barrister indicating to a client that they may lose or there is a risk that they will lose and a barrister informing a client in a declaratory fashion that they are certain to lose, or that the judge is certain to find against them, or that there is certain to be an award of costs made against them,” Mr McCann writes.

Recurring complaint

The report notes that a recurring complaint concerns barristers who fail to deal with work in a timely fashion or fail to return papers, which may include original documents.

“This may have adverse consequences for both solicitor and client and it is taken serious by the tribunal,” it states.

In one case, where the individuals have remained anonymous to preserve confidentiality, a client complained about the alleged failure by a barrister to call a witness. The tribunal was satisfied that the decision on whether to call a witness in the case was “a matter absolutely within discretion of counsel for an accused” and that it would be inappropriate for the tribunal to reach any conclusion in the matter.

If there were an error of judgment, that would amount to an issue of performance rather than misconduct, it added.