Many clerks concerned by ‘best endeavours’ approach
Law firms are imposing contracts on barristers they would never sign themselves, the chair of the Institute of Barristers’ Clerks (IBC) has said.
Brian Lee said most chambers had signed up to standard terms negotiated last year between the Commercial Bar Association (COMBAR) and the City of London Law Society (CLLS), which incorporated some of the revised contractual terms published by the Bar Council at the same time.
Mr Lee said that under Term B of the contract, solicitors are obliged only to use their “best endeavours” to pay counsel.
“The problem for barristers is that we don’t do due diligence,” Mr Lee said. “If solicitors have a difficulty with a client, they never share information with barristers or chambers.
“Under these contracts, they can say ‘sorry, we used our best endeavours’ to obtain payment and can avoid sharing losses with barristers.
“No law firm would ever agree to a contract like this with a client, but barristers do because they feel they have no alternative.”
Earlier this month, it emerged in a papers for a Bar Standards Board (BSB) meeting that the regulator had received reports of solicitors using “bullying” tactics to impose their own contractual terms on barristers.
In a speech to the recent IBC annual dinner, Mr Lee said the new BSB Handbook, introduced on 6 January, required chambers to contract “with each solicitor on every new set of instructions”, leading to a “huge explosion in paperwork”.
Mr Lee said that he and many other clerks were very concerned how the ‘best endeavour’ payment terms were found to be acceptable. “How can it be right that a leading City law firm, with perhaps a £1bn turnover, can contract with a junior barrister, say charging £50 an hour, on the basis they will use best endeavours to pay them?
“No law firm would enter into this contract, no expert would agree such a contract, but the Bar is lumbered with it. It does the legal profession no good at all and you wonder of all professions, how has this happened.”
On its website, the Commercial Bar Association said the terms of the COMBAR/CLLS contract were “a product of negotiation” and “do not represent the optimal terms on which COMBAR barristers might contract with solicitors”.
The statement went on: “In certain respects (most importantly the absence of a default basis for payment of barristers) the terms reflect the fact that no common position could be agreed.
“At no stage has COMBAR indicated to the CLLS that the terms have been agreed by or on behalf of the individuals or chambers that are members of COMBAR.”
