Where do you draw the line when policing the professions?
First of all, let me declare an interest. I chair the Professional Conduct Committee of the Chartered Institute of Arbitrators. Complaints of professional misconduct made against members of the institute are considered by the committee, which comprises legal and technical arbitrators and lay members. If the committee finds a prima facie case of professional misconduct it is referred to a tribunal for a hearing.
In the past year or so two cases were referred to tribunals. Both were compromised before the hearings were concluded and the results were published in the Chartered Institute of Arbitrators' Annual Report, although the names of the members concerned were not disclosed. The complaints, the outcomes and the decision to publish anonymous reports have all generated fierce debate within the arbitral community.
Arbitrators are not like other professionals. You cannot set out to be a professional arbitrator without first qualifying in a primary profession. Construction arbitrators tend to be quantity surveyors, architects, engineers or lawyers (or a combination thereof ).Conversely, you do not have to be a member of the Chartered Institute of Arbitrators to act as an arbitrator. Disputing parties can agree to elect any individual to decide their dispute should they so wish. The benefits of membership of the institute include training and qualifications, particularly the coveted title of Chartered Arbitrator, which qualifies the arbitrator to be the subject of a presidential nomination in the event that the institute is called upon by the parties to choose an arbitrator.
Nevertheless, the institute is responsible for the conduct of its members, particularly those it nominates, and is anxious to improve the standards of arbitrators and to promote arbitration.
And there's the rub. It is said that it is one thing to train members, to credit them and encourage them with lectures, talks and dinners; it is another to haul them before a professional conduct committee if their standards slip. Taking proceedings against members of a profession for professional misconduct is no cheaper than any other form of legal proceedings. Charges have to be drawn up, cases prepared and the trial conducted much like a criminal prosecution. Unlike the Crown, however, most professional bodies do not have the same limitless resources available. Members are known to wonder why their hard-earned subscriptions are spent on costly proceedings against fellow members who probably only need a bit of guidance, support or help.
On the other hand, those who have worked hard to achieve their professional status do not look kindly upon fellow members whose standards leave something to be desired and who run the risk of tainting the profession as a whole.
They welcome the threat of professional proceedings as one of the many incentives to stay on the straight and narrow, and see the cost of disciplinary proceedings as a necessary evil.
So where do you draw the line? A profession with a wide definition of misconduct and rigorous standards is likely to uphold a greater number of complaints and incur more costly disciplinary proceedings. A profession with a narrow definition of misconduct which is more supportive of its failing members will enjoy less credibility with the public and less confidence in its disciplinary proceedings.
A recent high-profile case before the professional conduct committee of the Architects Registration Board (ARB) shows how problematic this area can be. Architect Michael Wilkey had been severely criticised by the trial judge in a breach of copyright action against Rem Koolhaas.
Mr Wilkey had acted as expert witness for the claimant. The judge found his evidence biased and unhelpful to the court.
A subsequent complaint to the ARB for professional misconduct was dismissed and Mr Wilkey was exonerated (AJ 3.4.03). The committee found - with the benefit of further information and an agreement between the parties that an architect acting reasonably could have found similarities in the relevant drawings - that there was no evidence to support a charge of unacceptable professional conduct.
This episode demonstrates that, however damning a view may be taken of a professional's conduct, when judged by the standards of their peers, it may fall well short of professional misconduct. In short, there are no easy answers.