Failure to properly advise can amount to professional misconduct says Bar Tribunal

Given the cuts to the resources of state prosecutors, the number of private prosecutions are understood to be on the rise. It is therefore increasingly important for practitioners to be mindful of advising clients on the proper test for bringing a private prosecution including any associated risks.  The Bar Tribunal and Adjudication Service’s recent suspension of a barrister who failed to advise his client of the associated risks of bringing a private prosecution serves as a reminder for all practitioners to provide all-encompassing advice; whether positive or negative.

A significant risk in bringing a private prosecution is that the Crown Prosecution Service ('CPS') can take over the prosecution and discontinue it where there is no realistic prospect of a conviction or a prosecution is not in the public interest (this risk is significant not least because in many instances the CPS will have already decided not to purse a public prosecution for one or both of these reasons).  Where a private prosecution is discontinued the court may make a wasted cost order if it ‘is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs’.   Barrister Mark Smith - acting a on a direct access basis - and his lay client were made the subject of a £40,000 wasted costs order by the magistrates' court.

Mr Smith was found to have failed to advise his lay client of the risk of discontinuance and an adverse costs order. The court found that the improper act was that the private prosecution had been brought as leverage in civil proceedings.  The Tribunal also reprimanded the barrister for failing to take reasonable steps to ensure that he, or his client, retained a record of oral advice given, a breach of the Bar's conduct rules for public access barristers.  Mr Smith was suspended for one month.

This case highlights the importance of lawyers providing clients with comprehensive advice as to all potential outcomes.  The consequences of failing to do so are not limited to a negligence claim.

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