Barrister: Disciplinary tribunal’s decision was justified
The High Court has upheld a decision to disbar a barrister who continued to hold himself out as one while suspended from practice.
Mr Justice Kerr said: “I am sorry to say I agree with the tribunal that [Peter] Wareing is not fit to be a member of the barrister’s profession.”
Mr Wareing, who was called in 2004 and completed his pupillage in 2013, was disbarred in May but the details were not published pending his appeal.
He had been sanctioned by the Bar disciplinary tribunal on two occasions before another appearance in July 2021, when he was suspended for six months.
He was then accused of handling five cases while suspended.
Just before it started, Mr Wareing asked the Bar Standards Board (BSB) whether he could operate as a solicitor’s agent. It replied that this was a “question that the firm will need to ask” the Solicitors Regulation Authority.
The BSB also specified that a suspended barrister must not practise as a barrister, hold himself out as one while providing legal services, hold himself out as authorised by the BSB to provide reserved legal services or, when providing non-legal services, describe himself as a barrister without disclosing the suspension.
The May tribunal said the core allegation was that Mr Wareing conveyed the impression that he was practising as a barrister.
It said it accepted the BSB’s submissions that Mr Wareing “tried to behave and present himself as if his suspension from practice had not occurred; and, in so far as it became necessary to disclose his status, he adopted the device of being a ‘solicitor’s agent’ without any apparent effort to meet the definition of that role in substance”.
It went on: “He did not adequately disclose his suspension to courts or opponents who (as submitted) for the most part found out only by their own researches, but for which they would have been unaware of his suspension and would have assumed that he acted or continued to act as counsel.”
The tribunal rejected Mr Wareing’s defence that the BSB response was approval of him acting as a solicitor’s agent, saying it “did not give him any such assurance, but rather told him what he must not do”.
It found he acted with a lack of integrity and had damaged public trust by holding himself out as a barrister in four of the five matters, accepted public access work without being properly qualified in three of the matters, and carried out a reserved legal activity (a right of audience) when not entitled to do so in two of them.
He was cleared of acting dishonestly and practising as a barrister while suspended.
At the subsequent hearing where he was disbarred, the tribunal said each incident would have justified at least further suspension on its own, particularly in the light of Mr Wareing’s previous disciplinary history.
On appeal, Mr Wareing contended that the tribunal should have accepted that he acted reasonably by relying on the permission “ostensibly granted” by the BSB to undertake work as a solicitor’s agent “without transgressing the terms of suspension”.
Kerr J found nothing in the BSB response “that encourages Mr Wareing to take on the role of solicitor’s agent”.
He went on: “The most that could reasonably be taken from it is that it does not refer to any outright prohibition against doing so.”
It was not a breach of the suspension for Mr Wareing, without more, to act as a solicitor’s agent where the solicitors were on the record, as they were in two of the cases. In another, there was no express breach of the suspension merely by appearing in an employment tribunal, without more, since he did not need a right of audience there.
“Those points were noted by the tribunal and reflected in its decision,” Kerr J held.
It was also “not correct to say that the tribunal failed to consider lesser sanctions than disbarment” for these breaches, nor was disbarment disproportionate and excessive.
The tribunal followed the correct procedure in considering sanction and it was “not a realistic argument” to say its decision was outside the bounds of its reasonable exercise of judgment.
Given the tribunal found he had “intended to circumvent the suspension”, already had a bad previous disciplinary record, showed a “lack of insight”, and failed to engage with the disciplinary process, Kerr J said the tribunal was “clearly justified” in moving upwards from the normal starting point for the misconduct, which was suspension for at least 12 months.
The tribunal had adjourned the hearing at Mr Wareing’s request and relisted it for five months later on dates he said he could make. He only said he had got his dates wrong a fortnight before the hearing and the tribunal decided to proceed in his absence.
Again, Kerr J said he could not fault either the process or the outcome. Mr Wareing’s “head was in the sand in relation to fixing dates” and he did not properly engage with the disciplinary process.
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