BSB warns commercial pressures driving barristers to take risks

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6 April 2016

Barristers: risk outlook highlights commercial pressure, diversity, and unmet need

Barristers: risk outlook highlights commercial pressures, diversity, and unmet need

Commercial pressures on barristers are causing high risk behaviours that are detectable in complaints received by the Bar Standards Board (BSB), an assessment of future regulatory dangers has revealed.

The risk outlook, published this week among three documents relating to the BSB’s approach to risk-based regulation, is the first of its kind. It highlights possible sources of regulatory risk.

The outlook also highlighted what it claimed were indications that senior barristers were abusing their position of power over women, pupils, and junior barristers.

Pressures resulting from such things as increased competition from alternative providers and solicitors, and legal aid cuts, present a potential danger to the public, according to the BSB.

The other two areas of risk highlighted were of failure to meet consumer needs and of a lack of diversity in the profession leading to “discriminatory working culture and practises”.

Commercial pressures might on the one hand have a positive impact on growth and innovation among barristers, but equally they might lead to “a compromising of ethical principles, lowering of standards and/or unrealistic or hidden pricing in order to win business, may not be in the interests of those who rely on the market for quality advice, nor sustainable for providers”, the barristers’ regulator warned.

While it said direct evidence of “commercial difficulties” experienced by barristers was hard to come by – because “few are prepared to disclose them” – the BSB was nevertheless “confident [that commercial pressure is] having some impact on a significant number of barristers”.

It continued: “We see the consequences of commercial pressures through the complaints we receive and the subsequent investigations and enforcement action we undertake.”

Cost-cutting in response to commercial problems could lead to poor service, such as: “rushing certain parts of a client’s case, for example, by conducting legal research quickly or failing to prepare properly ahead of a court appearance; making mistakes due to overwork or stress; and failing to make reasonable adjustments for disabled or vulnerable clients who need additional (sometimes more costly) support”.

The BSB also highlighted its concerns that increasing pressure on incomes would increase the power of “influential and financially important clients” that could threaten the Bar’s independence.

It said: “Our fear is that by trying to win and retain influential clients or intermediaries, some members of the Bar could resort to financial tactics that harm the wider public interest.”

Equally, the temptation among barristers to accept retainer fee agreements from “wealthier or regular clients” could have a similar consequence.

This was “something we are hearing about anecdotally”, the risk outlook said, adding: “Barristers need to be aware of the intentions behind a client proposing a retainer fee arrangement and ensure that the arrangement is justified for the legal work required.”

In the section on what it labelled as the risk of a lack of diversity among barristers, the outlook underlined the issue’s wide importance for confidence in the legal system and the make-up of the judiciary.

Summarising the problems faced by ethnic minorities and women barristers, the BSB also addressed social mobility: “Significant work is needed to improve social mobility and make the Bar representative of society.”

Further: “There are also indications of senior barristers misusing their position of power over pupils and junior barristers. Talking with barristers, we have also heard about women being given lower-paid work than men, and suggestions that clerks are not always allocating work or agreeing fees fairly for junior barristers.”

On what it said were risks emanating from unmet legal need, the BSB warned that improving access and service quality for vulnerable clients was essential and such things as innovative pricing could also be good business for barristers.

“There is an opportunity for members of the Bar and other lawyers who find new ways to make themselves accessible to consumers not currently benefiting from legal assistance.”

Innovations could include adopting new technologies or “exploring how new models such as online crowd-funding for litigation could open up access for more clients to legal services”, the BSB suggested.

It concluded: “The Bar can assist by continuing to support provision of free or affordable legal services where possible. It can work to keep costs at accessible levels, offer flexible pricing models and client financing options and provide clear information to help manage expectations and provide certainty (where possible) around costs.”

BSB chair Sir Andrew Burns said: “The BSB’s first risk outlook shows that we have considered the regulatory landscape thoroughly and we will continue to do so, so that we are focusing our attention where we can add the most value.”

The Solicitors Regulation Authority has published regular risk outlooks for a number of years.

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