The Bar Standards Board has welcomed a decision to allow a case against a public access barrister accused of forging client care letters to be heard again, after he successfully appealed against being disbarred earlier this year.
Damian McCarthy launched a judicial review after he was disbarred in 2011, when it emerged that in 2010 the BSB had failed to disclose a statement by one of the principal witnesses against him ahead of his hearing. The Court of Appeal ruled in his favour, saying the BSB’s actions had left McCarthy ‘blind to any sense of fairness in the conduct of a disciplinary prosecution’.
The Visitors to the Inns of Court has now ruled that the bar regulator can retry the case.
Commenting on the judgment, Sara Jagger, director of professional conduct at the BSB, said: ‘Notwithstanding the history of the case, the BSB remains of the view that Mr McCarthy acted dishonestly and falsified the client care letters during our original investigation.
‘As this is a fundamental breach of the integrity expected from all barristers, it is right that this serious disciplinary matter can be re-heard.’
McCarthy had argued that the trial should not be reheard because the delay could affect the reliability of witnesses’ memories and because it would give witnesses for the BSB an unfair advantage.
But in his judgment Sir Stephen Stewart said he saw ‘no basis’ for the argument that McCarthy would be deprived a fair hearing, as both sides would know more than would have been the case at the first hearing and that any impact on the delay could be weighed at a tribunal.
‘There is clearly a public interest in there being a hearing of serious allegations made against a barrister,’ he said.
Sir Stephen ordered the BSB to pay the costs of the original tribunal hearing and a previous hearing before the Visitors to the Inns of Court. McCarthy was ordered to pay 70% of the BSB’s costs on the standard basis.
McCarthy was originally disbarred after a disciplinary tribunal ruled that he had written Rule 6 letters relating to public access to clients after a dispute arose about costs. Public access rules state that all client care letters must be sent in advance of work carried out.
McCarthy denied the charge. He told the tribunal that he had sent versions of the model Rule 6 letter by hand and observed that, had the letters he produced to the BSB been forgeries, 'he might have made a better job of them’.
McCarthy’s disbarment was overturned because a witness statement from one of the central witnesses was not disclosed until shortly before the hearing date, which a Court of Appeal judge said was ‘extraordinary’.