In The Times on 19 February 2018, barrister and part-time judge Suki Johal posed the question: ‘Why are more women and members of ethnic minorities likely to face professional complaints which the BSB entertains and then prosecutes?’ Recently Portia O’Connor, a black barrister, successfully appealed against adverse findings by a disciplinary tribunal against her, and was successful in the Supreme Court on a limitation point opening the door to a claim of discrimination  UKSC 78. O’Connor told Legal Futures that the impact of almost five years of litigation had been ‘completely devastating’ for her law firm but that ‘Whoever stands up to discrimination has to take risks. If we’re too frightened, nothing will change’ (13 December 2017). This article investigates whether this is an ongoing problem and if so, what can be done about it?
Black and minority ethnic (BME) barristers are more likely to be subject to a complaint, less likely to have a complaint closed without investigation, and more likely to have a complaint referred to disciplinary action. These are not my words, they are from a report commissioned by the Bar Standard Board (BSB).
Following internal research that showed BME barristers were over-represented in the complaints process (Report on diversity of barristers subject to complaints 2013), the regulator commissioned an external agency to review its professional conduct complaints processes. The consultancy Inclusive Employers analysed BSB data from the period 2007-11 and concluded in a report published in September 2013 that: (i) BME barristers were disproportionately over-represented in the complaints process in relation to the outcomes of external complaints; (ii) BME barristers were more likely to have a complaint referred to disciplinary action; and (iii) BME barristers were more likely to have complaints upheld.
It found that although there were steps the BSB could take to improve the complaints process from an equality and diversity perspective – in particular the provision of more prompt training for tribunal members which included training in unconscious bias – the procedure itself was not discriminatory and that other factors, as yet unidentified, were causing the disproportions shown in the data.
One of its recommendations merits exploring further here: that the names of subjects of complaints should not be disclosed to the committee except for the purpose of identifying conflicts of interests. Currently all reports for the committee are anonymised but the names of the barristers involved, along with case reference number, are disclosed to all members via a written list to allow them to establish if there is a conflict. Inclusive Employers recommended removing both case reference numbers and gender title assignments from the written list. The list would also be presented in random, rather than meeting agenda, order. If a member recognises a name and thinks there may be a conflict they can make enquiries of the administrative support team who will tell them (and only them) the reference number for the case (see Inclusive Employers 2013 Report – s 12 para 4 p 12).
The most recent analysis is the 2016 report Complaints at the Bar: An analysis of ethnicity and gender by the BSB Research Department which draws on 2012-2014 data. This also concluded that past research and reporting of complaints against barristers has identified that BME barristers were more likely to be subject to a complaint, less likely to have a complaint closed without investigation, and more likely to have a complaint referred to disciplinary action.
However, closer analysis of the figures showed that 33% of cases involving BME barristers were closed without further investigation. That figure compared to 50.7% in the case of white barristers (p 10, para 26, Table 3 of 2016 Report). Applying the multiple regression analysis method, 26.5% of cases involving BME barristers were referred to a disciplinary tribunal compared with 16.1% of cases involving white barristers (p 12, para 34, Table 6 Ibid). The Report makes the point that given the shortcomings of the regression model and the issues surrounding available data on practice areas, the findings of the analysis should be interpreted with caution (p 18, para 52 Ibid). It also makes the point that the accuracy and quality of the data currently collected by the BSB would need to be improved in order to determine with more accuracy what factors increase the likelihood of barristers being subject to complaints (p 25, para 61 Ibid).
Suki Johal identifies herself as a Catholic Asian of Indian descent. Her first encounter with the BSB stemmed from a lay client’s complaints against her between 2007 and 2009 in relation to bringing the profession into disrepute by breaching client confidentiality. The entire process took two years; at the end of which Johal was vindicated. The judgment read:
‘We are therefore unanimously of the firm view and significantly the lay member of the panel feels particularly strongly on this point that the prosecution of Ms Johal for an offence of professional misconduct in these circumstances was inappropriate. The decision to prosecute a barrister in these circumstances for professional misconduct entirely without regard to the genuine culpability of the barrister concerned is far more likely to bring the procedures of the Bar and the legal profession in general into disrepute both with other barristers and the general public than anything done by Ms Johal’ (para 12, Judgment in Johal case, dated 11 January 2009).
Fast forward to 2016. The managing board of a residential block in which Johal was living engaged a high profile City firm to bring unfounded complaints against her – in relation to a private dispute – before the BSB. She successfully appealed against an administrative sanction against her imposed by the BSB. The appeal panel observed that: ‘the BSB might wish to re-consider the processes and operation of the Administrative Sanction procedure; in particular the applicability of the common law to the processing of a complaint up to and before a decision is made to lay a charge’.
In response, the BSB pointed Counsel to its 2016 report and stated that although past research has shown a disparity of outcome of complaints between BME and white barristers, the data had not as yet been analysed in sufficient depth. Moreover, it said the 2016 report indicated other factors were at play and that the ethnicity of a barrister was not having a significant effect on the outcome of complaints. The BSB said that it will continue to monitor the handling of complaints and will publish a report later this year.
Effects on practitioners
Quite apart from serious impact on wellbeing of having to deal with a complaint and the effect on practice and lost income, there can be other devastating financial consequences. The Bar Mutual Professional Indemnity Insurance does not cover proceedings where the complaint arises from matters relating to a barrister’s private life. The entire process left Johal some £80,000-£100,000 out of pocket (excluding lost income) and she felt unsupported by her regulatory and representative bodies.
She is adamant that the different treatment of BME barristers in the complaint system (or indeed the profession) has to be weaned out. She told Counsel: ‘The problem must be identified where it exists, then by radical reform, be eradicated … what we all want after all is a fair and just profession – diverse – with men and women being treated equally – after all that is modern day Britain.’
For any BME practitioners out there experiencing similar difficulties, Johal went on to say, ‘they can come to me, because my door is open… to mentor… to help… because I would not have made it to this stage of my career without support from other practitioners who have dealt with similar issues’.
Johal wants an independent review led by a retired judge in whom all stakeholders, especially BME barristers, can have confidence.
Explain or reform
This article comes at a time when the Prime Minister has announced a race disparity advisory group chaired by Simon Woolley, director of Operation Black Vote and a commissioner for race on the Equality and Human Rights Commission. The results of the race audit right across government, coupled with the shocking criminal justice findings in the Lammy Review, highlighted what was referred to as ‘uncomfortable truths’. This galvanised the government into what was referred to by Woolley writing in The Guardian (2 April 2018) as ‘stage two: finding solutions’.
"Past research and reporting of complaints... has identified that BME barristers were more likely to be subject to a complaint, less likely to have a complaint closed without investigation, and more likely to have a complaint referred to disciplinary action"
Although BSB research in past reports found that ‘the reason for these disproportionalities is not known’, and a further report concluded ‘that the [BSB] complaints procedures were not at fault, but that other factors relating to complaints were causing the disproportions shown in the data’, a concrete conclusion can be drawn; that something is very wrong. Sadly there is an absence of any specific action point going towards addressing the specific problem of the over-representation of BME in the disciplinary process in the July 2017 enforcement Annual Report 2016/2017. It is not clear whether the BSB considers that regression analysis has explained the problem, and/or that this is just a lapse in statistics; and, whether informing sole practitioners practising predominantly out of London what is expected of them from the CPD regime has effectively resolved the issue. (January 2016 report prepared by the Research Department of the BSB to analyse the previously reported 2012-14 data on ethnicity and gender, using an alternative method of analysis.)
The BSB has taken up the training recommendations in the 2016 Report. All Professional Conduct Committee (PCC) members are required to complete equality and diversity training. ‘Unconscious bias and anti-discrimination practice’ training was provided to the PCC in December 2016: and a refresher session is planned for 2018/19. Unconscious bias training was provided to staff in the Professional Conduct Department in 2016 and further training across the BSB is planned this business year, extending to all members and clerks within the pool who make up disciplinary panels. All received mandatory training on equality and unconscious bias between April and July 2017 which is to be repeated every three years. Members of the Bar Tribunals and Adjudication Service (BTAS) have received training in Equality and Diversity, and BTAS has an equality and diversity policy which stresses that only those who have received this training can select individuals to serve on panels.
Training takes us some way, but the ultimate aim must be to eradicate the problem. Can it be done? Yes. One recommendation made by the Lammy Review in relation to understanding the disparity of statistics within ethnic groups is where the organisation cannot provide an evidence-based explanation for apparent disparities between ethnic groups, then reforms should be introduced to address those disparities. This principle of ‘explain or reform’ should apply to every such institution (Lammy Review Recommendation 4, Chp 1, page 14).
Where does this leave us? The big take aways are threefold. First, barristers must be aware that Bar Mutual Professional Indemnity Insurance does not provide coverage where complaints being dealt with by the BSB arise in respect of private matters. Second, the BSB might wish to re-consider the processes and operation of the Administrative Sanction procedure; in particular the applicability of the common law to the processing of a complaint up to and before a decision is made to lay a charge. Third, it is clear that it is important to use appropriate data collection, analysis and application methods in order to measure outcomes of the complaints processes and procedures. This is critical for the analysis of outcomes not only in relation to race, but also, gender, socio-economic background, and disability amongst others.
Contributor Desiree Artesi is an equity champion at the Bar and member of the Counsel Editorial Board. Coming up: Desiree interviews Gary Younge, author, broadcaster and editor-at-large for The Guardian
What’s regression analysis?
Regression analysis is a way of mathematically sorting out which variables have an impact. It answers the questions: Which factors matter most? Which can we ignore? How do those factors interact with each other? And, perhaps most importantly, how certain are we about all of these factors? The dependent variable is the main factor you’re trying to understand or predict. Independent variables are the factors you suspect have an impact on your dependent variable. However, you need to remember the important adage: Correlation is not causation. There are three main disadvantages to using regression analysis. First, it is important to identify the factors that you suspect are having an impact and ask your analyst to look at those, not to ask the analyst to go on a fishing expedition to identify the factors. Second, analyses are very sensitive to bad data so care has to be taken about the data you collect and how you collect it, and know whether you can trust it. Third, you always have to lay your intuition on top of the data. Ask yourself whether the results fit with your understanding of the situation.
Source: Harvard Law Review, 4 November 2015, A Refresher on Regression Analysis.
An affinity bias example
Unconscious patterns can play out in subtle ways hard to spot. Imagine, for example, you are conducting an interview with two people; Natalie and John. John reminds you of yourself when you were younger, or of someone you know and like. You have that sense of familiarity or ‘chemistry’. You instantly like him, and though you are not aware of why, your mind generates justifications. (‘He seems like a straightforward kind of guy. I like the way he ‘holds’ himself.’) You ask him the first interview question and he hems and haws a bit. After all, it’s an interview. He’s nervous. Because you feel an affinity toward him, you pick up on his nervousness. You want to put him at ease. You say, ‘John, I know it’s an interview, but there’s nothing to be nervous about. Take a breath and let me ask the question again.’ John nails it this time and he’s off and running to a great interview. The whole interaction took four seconds, yet it made a world of difference.
Then you sit down with Natalie. There is nothing negative about her, just no real connection. It is a very ‘business-like’ interaction. You ask her the first question and she’s a little nervous too, but this time you don’t pick up on it. This interview moves forward, but not quite as well as John’s. The next day a co-worker asks you how the interviews went, and you respond: ‘John was great... open, easy to talk to. I think he’ll be great with staff and clients.’ And your reply about Natalie? ‘She’s okay, I guess.’ Your perceptions about the interviews constitute your reality. You probably don’t even remember the four-second interaction that changed John’s entire interview.
In fact, if somebody asks you, you would swear you conducted the interviews exactly the same way with the same questions. Your own role in influencing the outcomes was completely invisible to you, driven by your background of comfort with John.