Bar Standards Board v Howd

A barrister’s duty to act with honesty and integrity applies to business-related activities, including a chambers marketing event. In this context, integrity means probity and adherence to ethical standards. It does not extend generally to inappropriate or offensive social or sexual behaviour unrelated to honesty or probity.

Regulatory guidance may assist interpretation, but it is not a mandatory rule and does not establish a breach merely because conduct falls within an example given. Professional misconduct requires serious conduct. Behaviour caused by a medical condition, and therefore lacking reprehensible, morally culpable or disgraceful quality, does not meet that threshold.

A Disciplinary Tribunal found six charges of professional misconduct proved against a practising barrister. The charges arose from inappropriate and sometimes offensive behaviour towards female colleagues and staff at a chambers marketing party. The Tribunal found breaches of Core Duty 3, concerning honesty and integrity, and Core Duty 5, concerning public trust and confidence. It imposed a fine of £1,800 and ordered a contribution towards witness expenses.

The barrister appealed against the findings of guilt. He challenged the Tribunal’s treatment of medical evidence, its assessment of one complainant, its interpretation of the Core Duties and its conclusion that the conduct amounted to serious professional misconduct. The Bar Standards Board cross-appealed against the sanction as unduly lenient.

1. The barrister’s appeal was allowed and the Bar Standards Board’s appeal against sanction was dismissed. Further medical evidence established, on the balance of probabilities, that the inappropriate and sometimes offensive behaviour resulted from a medical condition. Excessive alcohol consumption was probably a response to the onset of that condition and exacerbated the resulting disinhibition and loss of judgment.

2. An appeal under CPR Part 52 was a review rather than a rehearing. Appropriate respect was due to findings based on oral evidence and credibility. The Tribunal had directly addressed the inconsistencies affecting one complainant’s evidence and had found her credible after hearing her. The High Court therefore had no proper basis for interfering with that factual assessment.

3. Core Duty 3 applied at the party. A chambers marketing event directed at professional clients was a business-related activity within the Handbook’s broad definition of a barrister’s practice. The duty therefore extended beyond the direct supply of legal services to the conduct of barristers during chambers’ business activities.

4. The Tribunal nevertheless misconstrued integrity. In Core Duty 3, integrity takes its colour from honesty and connotes probity and adherence to ethical standards. It does not encompass inappropriate or offensive social or sexual behaviour merely because that conduct attracts moral criticism. The regulatory guidance identifying seriously offensive or discreditable conduct was not a mandatory rule. The Tribunal had wrongly treated the guidance as establishing a breach without deciding whether the conduct demonstrated a lack of honesty or integrity. The Core Duty 3 charges should have been dismissed.

5. Conduct towards colleagues and staff at a professional marketing event could in principle diminish public trust and confidence under Core Duty 5 because it occurred in professional life rather than in an entirely private setting. If the public knew that the conduct resulted from a medical condition and lacked reprehensible or morally culpable quality, however, it would be unlikely to diminish trust and confidence, provided the barrister remained fit to practise.

6. Professional misconduct requires seriousness and does not extend to trivial breaches. Conduct outside professional practice may qualify where it is morally culpable or otherwise disgraceful and prejudices the profession’s reputation. Here the conduct was caused by factors beyond the barrister’s control. It was therefore neither reprehensible, morally culpable nor disgraceful and did not cross the threshold of serious professional misconduct.

• High Court (Administrative Court): The barrister’s appeal against the findings of guilt was allowed. The Bar Standards Board’s appeal against sanction was consequently dismissed.
• Disciplinary Tribunal of the Council of the Inns of Court: Six of eight charges were found proved and two were dismissed. The Tribunal imposed a fine of £1,800 and ordered payment of £400 towards witness expenses.
• Preliminary hearing: Four charges alleging unlawful discrimination or harassment were struck out. The remaining charges were amended by replacing allegations of harassment with allegations of pestering.