Garnham J: “no slip of the tongue or slip of the keyboard”
A barrister who told a direct access client he had “all the same freedoms” as a solicitor to conduct litigation, when he did not, has lost a High Court appeal against his three-month suspension.
Oliver White, based at the time of the incident at 4-5 Gray’s Inn Square, argued that the suspension was “manifestly excessive” and he had been acting “in the heat of the moment” when he made the comments.
However Mr Justice Garnham found that the email sent by Mr White to the High Court Enforcement Group, in which he made the “deliberate decision” to inform the client that he was entitled to conduct litigation, was “no slip of the tongue or slip of the keyboard”.
Garnham J said it was “perfectly clear” that the email, which began by Mr White saying he was already “drafting a reply” to an earlier email when the latest one arrived, was “not sent without thought”.
The judge said Mr White had “some days to reflect on an appropriate response” to the earlier email, which made clear the client’s “concern about the fact that client money was being held by Mr White in his chambers account”.
Mr White was appealing against sentence, having pleaded guilty to three charges of professional misconduct at a Bar disciplinary tribunal hearing on 17 June 2015, before judge John Price.
The first charge was that in June 2014, while acting as a direct access barrister, Mr White handled around £400,000 of client money.
The second was that he “failed to act with integrity” by writing an e-mail to his solicitors the following month in relation to the money, in which he claimed to be entitled to “conduct litigation with all the same freedoms that a solicitor is able to operate within”.
The third charge was failing to respond to emails and letters sent to him by the Bar Standards Board (BSB). Mr White was fined £2,000 for the first and third charges and suspended for three months for the second charge.
Mr White, a commercial barrister specialising in banking litigation and civil fraud, had earlier been sanctioned, by a separate disciplinary tribunal, chaired by Suzan Matthews QC, for previous offences relating to his direct access work.
The main charge was receiving and handling client money, this time a much smaller sum of £5,000, when acting on a direct access basis between April 2012 and January 2014. Mr White was banned from accepting direct access cases and fined £1,000.
Delivering judgment in White v Bar Standards Board [2015] EWHC 3583 (Admin), Mr Justice Graham said the BSB accepted that Mr White had not been dishonest in his conduct.
He said Mr White, who represented himself, told the High Court that suspension would be “catastrophic” and would cause “enormous harm” to his professional reputation.
However, Garnham J rejected his argument that his plea of guilty was “equivocal”, describing him as a barrister of “some years standing” who was “acutely familiar” with the facts of the case.
Rejecting a further argument that the tribunal was not entitled to conclude that his conduct had undermined the reputation of the profession, Garnham J said: “The offence which Mr White had admitted, namely failing to act with integrity, is a serious one.
“It is right to say that it is yet more serious if it is established that a barrister not only failed to act with integrity but also acted dishonestly but that is not to ignore the seriousness of the former offence.”
Garnham J said the principles on lack of integrity set out by Lord Bingham in the leading case of Bolton v The Law Society, “self-evidently” applied to barristers as well as solicitors.
He said a three-month suspension was an entirely “appropriate and proportionate” response to Mr White’s misconduct.
“It is the sentence I would have imposed if I had been sitting as the tribunal. I recognise and accept the serious implications of such a suspension for Mr White’s career.”
Garnham J dismissed the barrister’s appeal.
A spokesman for 4-5 Gray’s Inn Square said: “We can confirm 100% that Mr White is not a member of these chambers and has not been for some time. That is not how we do things here.”
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