Solicitors can discharge barristers’ complaints information obligation, BSB decides

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By Legal Futures

24 May 2011

Complaints: issue has caused huge angst among barristers, says Hollander

The Bar Standards Board (BSB) has approved the latest version of guidance on “signposting” requirements to notify lay clients of their rights to complain about poor service.

It hopes the new formula will satisfy both disgruntled barristers and the Legal Services Board (LSB).

The guidance, approved at the BSB’s full board meeting last week, allows barristers to inform clients by letter or at the first meeting. It will be insufficient simply to pass complaints information to an instructing solicitor or make it available on a chambers’ website.

However, where a solicitor positively agrees to convey the information – even in relation to a series of instructions – the barrister’s signposting obligation will be discharged. But there must be an “unequivocal agreement” and confirmation obtained from the solicitor.

The plan is a compromise after months of wrangling between the BSB, barristers and the LSB – which dug in its heels over its demand that providing complaints information to lay clients should be a professional obligation. Barristers’ objections focused on the perceived impracticability of complying and the bureaucracy involved.

A BSB survey found at the end last year that four out of ten chambers were flouting their obligation to provide complaints information, which came into force in October.

Background notes provided to the board said: “It is recognised that there will be circumstances in which… it will be impractical to comply strictly with the requirements. What is important is that chambers set up systems, and establish procedures.”

Presenting the revised guidance to the board, Charles Hollander QC, who chairs the BSB’s standards committee, said: “This issue has caused more angst among barristers than anything I can remember since the abolition of wigs”.

He added that e-mails were still being received by specialist Bar associations from barristers accusing the Bar of failing to “stand up to the BSB” and “the BSB in turn for failing to stand up to the LSB” on the issue.

In his written comments, Mr Hollander said the new guidance struck a “balance between prescription and flexibility” and achieving compliance without “placing obligations on the Bar that are impractical or disproportionate”.

Meanwhile, the board approved a change to the code of conduct relating to the supply of legal services by barristers to solicitors, as predicted by Legal Futures.

It will clarify that the cab rank rule applies to new contractual terms agreed by the Bar Council and to barristers’ own published terms on their chambers’ website.

The board rejected an amendment floated by board member Patricia Robertson QC to provide that the cab rank rule should apply where the barrister was offered work on “reasonable” terms.

The BSB’s standards committee had rejected the suggestion as “unworkable in practice”, since disputes would arise as to what was “reasonable” and barristers would not have time to consider the question where urgent briefs were involved.

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