Regulator warns barristers over use of gagging orders

Barristers will be told that non-disclosure agreements (NDAs) must not be used to cover up offences that should be reported to the police or regulator.

The Bar Standards Board (BSB) is set to issue guidance for barristers on the use of NDAs in cases of alleged sexual harassment. A spokesperson told Counsel that the guidance will state that the use of NDAs is inappropriate if it seeks to prevent the reporting of matters that are disclosable to regulatory or law enforcement bodies or under the Public Interest Disclosure Act, and that they should not be used to ‘threaten, intimidate or deter’ someone from making a proper disclosure.

In updated guidance regarding the reporting of serious misconduct of others, the regulator made it clear that enforcement will not be taken against barristers who fail to report discrimination, harassment or victimisation where they have been the subject of the misconduct. The BSB is also piloting a scheme to grant a waiver from the duty to report for barristers trained to advise and support others.

Figures released in the regulator’s annual Enforcement Report showed that there were eight reports of sexual harassment by barristers in 2016-17, while there had been none in the previous year.

The report showed that the number of complaints against barristers had risen by nearly 30% over the past year to 475 – the highest number of new complaints opened in any year since 2013-14 – and reports of serious misconduct had risen to 133 from 110. However, the number of barristers disbarred fell to six from 20.

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