BSB chastised over ‘bad’ misconduct findings

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The first barrister to set up a legal disciplinary practice has overturned her convictions for breaching Bar Standards Board codes on conducting litigation in a public access case.

Portia O’Connor (pictured) set up Pegasus Legal Research in 2010. In May 2011 she was convicted by a BSB disciplinary tribunal of four charges of professional misconduct for signing a statement of truth on behalf of clients in litigation and one of discreditable conduct for sending a copy of the client’s defence and counterclaim to the solicitor on the other side.

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The Visitors of the Inns of Court, which hears appeals from the tribunal, overturned all five convictions and awarded O’Connor costs. The written judgment is not yet available, but a note taken by city firm Collyer Bristow, which assisted O’Connor, shows that the Visitors raised concerns that the BSB’s guidance on conducting litigation is not sufficiently clear.

Led by Sir Andrew Collins, the Visitors said that signing a statement of truth, provided it is done in a proper fashion, is not to be regarded as professional misconduct. The judgment indicated that it was ‘absurd’ that sending a copy of the statement of case lodged at court to the other side could be regarded as conduct of litigation and forbidden for a barrister dealing with a direct access client, instead stating that O’Connor had shown courtesy in doing so.

‘There is no question this is a bad decision,’ Collins said, adding that it was ‘strange’ that the BSB had persisted in the prosecution.

He said: ‘We put up a marker and hope that we will see no repetition of the sort of matters which went wrong potentially in this tribunal.’

The Visitors also found that the tribunal’s failures to allow O’Connor to make final submissions or comment on the evidence, or to give any proper reasons for the basis on which it reached its decision, were unfair and breached natural justice. A further issue raised by O’Connor about the competence of the tribunal was not considered due to the finding in her favour.

A BSB spokesman said: ‘The BSB respects the decisions of the Visitors and the integrity of the appeal process which is an essential component of the disciplinary system. Once the judgment is available the BSB will be able to assess what action needs to be taken.’

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