This morning’s post about vexatious litigants having their own dedicated list on the Ministry of Justice’s website got us thinking about transparency and the importance of being upfront and fair.

Having written a post a little while ago on lawyer discipline and how professional misconduct gets recorded in the justice system, it occurred to us that there was a parallel between lawyers who find themselves at the sharp end of the law, and litigants who vex the system. Both parties share something in common: they are individuals who present a perceived threat to the system.

This then got us thinking about the ways in which each group is handled by the system, and whether the treatment is the same for both. It becomes quite clear that this is not the case.

Vexatious Litigants are added to their list and left to languish upon it for what would appear to be an entire lifetime (you can see from the dates some of the orders were made, orders which bar the litigants from issuing any more proceedings in civil courts, that a great many of these litigants are now dead). But it’s a different story for naughty solicitors and barristers.

Hop on over to the Bar Standards Board and the old page which shared information on disciplinary hearings and bad boy barristers is gone. In its place is a new, rather more nebulous affair, which allows you to search for a barrister by name, and from there to see whether or not they have been subject to disciplinary hearings, suspension and even disbarred. So far so good. But then, you read the small print,  below.

What transpires is the following: unlike the Vexatious Litigant Roll Call, which now numbers two lists (the first list which we posted this morning, and a newer list which is currently available under another heading entitled Civil Restraint Orders) and which is an ever-growing list of people reaching as far back as 1956, with neither site appearing to suggest that the lists will at any time be culled either post the life of the order, or at all, the Bar Standards Board page tells us:

“Please note historical disciplinary findings imposed before 2002 are not included on our website. Also, findings which do not include a period of suspension from practice or disbarment are removed from the website after two years.”

And much the same is said over at the Solicitors Regulation Authority, which also explains:

• Not all regulatory decisions are published—read more about our publication policy.
• We began publishing decisions in early 2008.
• Decisions remain on the site for three years.
• For the most up-to-date and complete picture of an individual’s regulatory record, please contact us.
• Read more about how we regulate.

We have no personal objection when it comes to removing names of naughty lawyers if the infractions are minor, we all make mistakes, and it does appear from the lists for naughty lawyers that particularly big blunders do not get removed from the site, which in turn protects members of the public and helps the profession, by being transparent, and so building trust.

However it is not clear from either lawyers’ sites whether big blunders prior to 2002 for barristers and prior to 2008 for solicitors are left on site (we have not had time to check). If lawyers who have been suspended from practice or disbarred prior to 2002/ 2008 are not on the list, this would completely defeat the purpose of such registers, and could result in an unsuspecting client hiring and paying for advice from a lawyer who has been barred from practice. And if, as the SRA suggests, all decisions are removed from their site after three years, where does that leave the consumer, as he trawls through the register to find out if the solicitor he is about to hire is actually fit to practice?

And what of the lists of vexatious litigants? It is important for transparency to be a two-way street, but when people who are clearly no longer alive still have their names on a list, we must ask ourselves whether transparency in this area is a one-way street.

Vexatious litigants, unlike lawyers, have no details about their case on these sites, no information is provided as to why and how they continued to issue proceedings. These lists are treated as a one-dimensional affair, whereas the registers for lawyers are filled with helpful details about any existing infractions. That detail is reassuring, allowing members of the public to understand better what mistake has been made, and whether or not it is material to their requirements. Vexatious litigants do not get the chance to explain; they are merely vexatious, rather than, for example, misguided. And as the list is for the benefit of lawyers and court staff, one has to wonder whether the system is doing itself any favours by being so basic about these litigants.

It’s an interesting area of the justice system. How we perceive one another, during that first phone call, meeting or court hearing is a critical moment which has an enduring impact. If we were just a little less black and white about things, perhaps transparency would get the chance it deserves to heal at least some of the wounds inside an ailing system.