Protecting members and the public interest

As Ciarb’s governance reform progresses, we meet the incoming and outgoing Chairs of the Professional Conduct Committee and share details of revisions to the Disciplinary Rules.

The PCC’s main purpose is to investigate all complaints of whatever nature against any member of Ciarb. This includes investigating any issue, concern or other matter arising out of or in any way connected to the complaint or information or the subject matter of the complaint. The PCC consists of no more than five lay-members and up to nine Ciarb Fellows, at least two of whom must be lawyers and at least one should hold or have held judicial office. The PCC is currently recruiting for members – for more information, see below.

Former Chair, Patrick Waterhouse comments, “Ciarb must act in the public interest and investigate complaints made against its members. Where we conclude that one of our members has erred in respect of our rules, we must act accordingly. Our sanctions vary from requiring additional CPD right through to expulsion. However, we must also guard against frivolous or unsubstantiated complaints that could unfairly impact on a member’s professional standing. Dispute resolution is a contentious business, and the appointed neutral often comes under fire from a dissatisfied participant merely because it has been less successful than anticipated. Complaining about the neutral is often the final opportunity to express dissatisfaction. The committee must tread carefully and ensure that complaints are dealt with properly.”

Carsten Jensen has a long history in professional regulation matters in Canada, where he previously served as President of the Law Society of Alberta, and as its Chair of Conduct. He continues to serve the legal profession as Alberta’s representative to the Federation of Law Societies of Canada and is Chair of the Standing Committee on the Model Code of Professional Conduct for lawyers in Canada.

Carsten comments, “I have served on the PCC for several years, and over that time the membership of the committee has evolved to better represent the worldwide membership of Ciarb. I plan to continue the changes started in the last two years to modernise the complaints process and to make it responsive to our global membership. Governance reform at Ciarb has included an update to the procedures used by the PCC to receive, manage, and properly address conduct concerns. We need to be responsive and efficient in order to maintain public confidence and to properly serve the members. The public has a right to expect that members of Ciarb carry out their work in accordance with clear ethical principles, and that there is a trustworthy process to hold them to account in the rare cases where that does not happen. Our members have a right to expect a fair and transparent process for complaints investigation and review, and everyone has an interest in making sure it all happens as quickly as possible."

Patrick comments, “We never like a proven complaint against one of our members but, when it happens, we know that Ciarb has been correct to investigate that complaint. It is pleasing when we can clear a member who has been wrongly accused of misconduct. Sometimes allegations can hang over the member for many months and confirmation that there is no case to answer can be a big relief. Knowing that we have properly investigated a complaint is rewarding, but where the complaint is found to be justified, that reward is tinged with some regret.”

Patrick notes, ”A highlight has been the group of talented people that I have been able to recruit and work with on the committee. It is made up of alternative dispute resolution professionals who I have been fortunate to rely upon. There is a global feel to our meetings with members on four continents. My successor, Carsten, needs little advice as he has been a valued member of the committee for some time. Each chair should bring their own approach to the role, and I have every expectation that he will be successful in the role.”

Ciarb’s Professional Conduct Committee is delighted to welcome Carsten Jensen FCIArb as its new Chair and thanks former Chair Patrick Waterhouse, FCIArb for his commitment and dedication to the role.

Carsten Jensen FCIArb is a founding partner of JSS Barristers and a former Managing Partner of the firm. His practice focuses exclusively on dispute resolution, with an emphasis on corporate and commercial litigation, including commercial class actions, oil and gas disputes, shareholder disputes, multi-party litigation and arbitrations. Carsten is highly experienced in arbitration matters, both as party counsel and as arbitrator.

Carsten has served as arbitrator in many commercial disputes as sole arbitrator, as a panel member, and as chair. He has experience with ad hoc and institutional arbitral proceedings, including ADR Institute of Canada, Vancouver International Arbitration Centre and International Criminal Court matters, in a range of commercial disputes, including international commercial transactions, construction and engineering faults, failures and delays, energy, environmental claims and commercial real estate.

Between 2006 and 2014, Carsten was a Bencher of the Law Society. In that capacity he has served as an adjudicator on disciplinary panels in over 25 matters, at least 10 of which he served as the chair and followed by a written decision principally authored by Carsten. His written decisions are available by searching the CanLII database.

Carsten continues to serve on the Law Society's roster of adjudicators and accepts occasional appointments to serve as a panel member on Law Society hearings. In addition, he serves as a member of the Appeal Committee of the Canadian Centre for Professional Legal Education (CPLED), dealing with academic appeals arising from the bar admission process.

Ciarb Disciplinary Rules revised

As part of its ongoing governance reforms, Ciarb has revised its Disciplinary Rules to ensure they align with best practice. The key revisions are summarised below.

The Disciplinary Rules have been revised to:

1. Reduce the number of steps in the disciplinary process.
2. Introduce a separation of powers between those conducting investigations and those making disciplinary decisions and issuing disciplinary sanctions.
3. Use the Disciplinary Tribunal for only the most serious misconduct the Professional Conduct Committee (PCC) for lesser sanctions.

The Peer Review Panels powers and functions are now to conduct the investigation, review evidence, establish facts, and prepare a report. Its role is not to reach an outcome decision or recommend sanctions.

Decisions and sanctions will be made and issued by either the PCC or Disciplinary Tribunal.

The time limit for making a complaint is 12-months other than for those relating to criminal convictions (which may be investigated provided the conviction is unspent), and where there are exceptional circumstances.

The PCC can now consider information obtained about a member, of whatever nature, which alleges or may amount to misconduct or a breach of Ciarb's Membership Terms and Conditions.

Further, where adequate evidence has been provided or is available, the Ciarb may, at their discretion, consider anonymous complaints.

Ciarb aims to appoint Peer Review Panels in each of the regions in which the Institute operates (UK, Europe, East Asia, Australia, Americas, Ireland, Africa and Middle East Indian/Sub-continent) from amongst the Ciarb Membership to help support Ciarb’s new disciplinary process. We are seeking PRP Members who can demonstrate a commitment to the work, values and vision of Ciarb. We are looking for applicants who have experience in an investigative role, are clear thinkers, good communicators, and are willing and able to devote time to the role.

This link will give you more information on joining the Peer Review Panel.

This link will give you more information on the full Disciplinary Rules.