The Legal Ombudsman (LeO) is to review its internal investigations guidance after a barrister was cleared of misconduct due to its own ‘failure to cooperate’ with the disciplinary process.
A client of Julian Smith, at Lincoln’s Inn Field Chambers, complained to the LeO alleging that the barrister had refused to refund the cost of a cancelled conference. There was disagreement over who was to blame for the cancellation.
LeO asked Smith to provide documents and information from his files. In turn Smith asked the LeO to provide to him all the information that had been given to the ombudsman by his client.
The investigator said she could not provide such details until she had issued her findings in relation to the complaint.
After Smith failed to comply with the LeO’s request for information, the matter was referred to the Bar Standards Board. The bar disciplinary tribunal found Smith had breached rule 905 of the BSB code of conduct by refusing to provide the information and ruled that the LeO’s request for information was ‘perfectly reasonable’.
However, the tribunal concluded that the breach was not sufficiently serious to constitute professional misconduct as the LeO had refused to show him documents relating to the complaint.
Tribunal chair Alan Steinfeld QC said that ‘cooperation is a two-way process’. He said the ombudsman should have provided all the information requested to Smith and that it was understandable that Smith felt justified in not cooperating. Smith, Steinfeld said, ‘could be forgiven, if not justified, in taking the stance that he did’.
Responding to the ruling, chief ombudsman, Adam Sampson, said: ‘Our general approach to investigating complaints is to share evidence with all parties concerned and we try to do this at the earliest appropriate opportunity.’
He said: ‘The outcome of this tribunal reaffirms the importance of doing so and we will therefore revisit our internal guidance to make sure that any decisions we make about sharing evidence and when to do so are fair in the circumstances of each case.’
Sampson noted: ‘In this case the tribunal accepted that the lawyer failed to provide all reasonable assistance to the Legal Ombudsman and in doing so breached his own code of conduct; in that respect our decision to refer the matter to the lawyer’s professional body was correct.’
He added: ‘We welcome the tribunal’s observations both in respect of the ombudsman’s approach to evidence-sharing and the lawyer’s failure to provide all reasonable assistance with our investigation.
‘We believe that the decision provides an opportunity for the ombudsman and members of the legal profession to learn how we can better work together to resolve complaints.’