Posted by Lucy Reed, a barrister at St John’s Chambers and author of The Family Court without a Lawyer – A Handbook for Litigants in Person, published by Legal Futures Associate Bath Publishing
Last month the Bar’s regulator, the Bar Standards Board, published its research with people who have used barristers’ services during family legal proceedings. It was published under the headline “Barristers are serving family law clients well, says new BSB research” (see the Legal Futures story here).
The Law Society Gazette clearly got the wrong version of the press release, because its headline on the day of publication said “Public considers barristers ‘too expensive’ for family advice, regulator finds”.
The Gazette summarised the key findings and conclusions of the report, but the focus was on those aspects of it which were more negative – perceptions about cost (not actual cost by the way), the comparatively small market share held by the Bar, limited information provided to lay client before court etc.
It concludes with a quote from a solicitor: “I don’t find the results of the BSB survey surprising. Parties in family law matters generally need an ongoing relationship with their lawyer rather than a ‘hired gun’ they might use on a direct access basis for a hearing.
“Typically, they don’t realise a barrister cannot offer that. Specialist family law solicitors understand that one needs to develop a bond with a client, as well as a strategy, in such emotionally-charged issues…
“In my experience, fewer barristers offer fixed fees. Hourly rates are more common. As a niche family law practice, we will always talk to potential clients without the clock ticking. As much as anything, this is a risk-management exercise.”
Perhaps his quote was incomplete or taken out of context, but as it was presented, it went against the grain of the BSB report, not least because the report showed that those who instruct a barrister via public access do report a good experience and a stronger lawyer-client relationship – albeit that public access barristers do not usually conduct litigation or run a case on behalf of a lay client as a solicitor under traditional retainer would.
There ought not to be anything in the BSB report that threatens the solicitors’ profession. As acknowledged in the report and Bar Council response, the Bar remains a largely referral-based profession. Public access is still a minority activity in family law – and this is unlikely to change.
But it is unhelpful to use the pejorative “hired gun” to describe such services. A public access barrister instructed for trial only is no more a “hired gun” than any other lawyer instructed via referral, unbundled services or traditional retainer.
On the other hand, if one were to run with the metaphor, one might say that the instruction of a barrister for a specific piece of work that a legal consumer feels they cannot manage themselves is a targeted deployment of a limited arsenal.
Clients only have so much money, and for some this may be the best use of it in the circumstances. For many others though, it will not be the right thing to do at all. The trick is in solicitors and barristers helping prospective clients work out what is the best fit for this particular client.
Sensible barristers don’t accept public access instructions where it is not going to be in the client’s best interests. They send them to a solicitor, because that is what the case, and the client, needs.
Sometimes counsel will end up instructed via the traditional referral route, but very often not. And sometimes solicitors will refer existing clients to counsel as they come off the record, so the client can focus their depleting pot on a forthcoming trial.
This survey does not support the insinuation that barristers are taking on work or clients that are not suitable for public access.
What’s more, the report confirms that many barristers do offer fixed fees, for public access work in particular. Whilst an increasing number of solicitors’ firms do offer fixed-fee packages, there are still many who are on the clock and charging in ways which legal consumers find opaque and anxiety inducing.
That is not to say the Bar is perfect, but public access work is likely to be on the rise because it is one way of purchasing legal services for a known price, because it is by and large event specific rather than a rolling involvement.
Many public access enquiries come from litigants who have been instructing a solicitor but no longer consider it cost effective. Sometimes they are simply hoping the grass is greener, on other occasions we can offer a service which is, for them, better value for money.
Some little while after the report was published, the Bar Council published a press release, with a headline from a different angle: “Family Bar has much to be proud of”.
In the Bar Council response, Philip Marshall QC, chair of the Family Law Bar Association, said this: “Inevitably, some parts of the legal services sector will home in on the few negatives from the report, particularly the perception of how much barristers charge. The Bar Council and FLBA will do more to highlight to the public that this perception is not accurate.
“To view this report as negative for the family Bar would be a complete misinterpretation of the findings. With the many challenges family practitioners face today, this report gives a positive insight into how clients view family barristers despite those challenges.”
It’s a shame that the Bar Council didn’t get itself together to say this sooner, but the point is well made – the conclusions of the report speak overwhelmingly of very positive experiences by consumers of family legal services by barristers, and of largely positive experiences of public access.
For those consumers of legal services who are competent to manage their own case, public access not only represents a good way of managing a limited budget, it also represents a way of accessing expertise that is well targeted on the day.
One of the negative experiences that the BSB report identified was around the barrister not giving enough information about the court experience, or a lack of time to explain everything.
The fact that for over a third of referred clients the first time they saw their barrister was on the day of the first court hearing, is probably not unconnected to the criticisms about clients having inadequate information about the court experience or the barrister having adequate information about the case.
Clients generally hate meeting their barrister on the day of the hearing. The answer in a referral case is a proper brief, earlier instruction of counsel and arranging a conference with the client (if accepting instructions through public access, a barrister’s clerk would generally arrange a conference before any hearing as a matter of course, but this is not always within counsel’s gift in a referral case).
Where both are instructed, solicitors and barristers should work collaboratively to prepare a client for the court hearings and to ensure that they have obtained and given adequate information to act together in their lay clients’ best interests.
Both branches of the profession have much to offer in family cases, including in the case of the Bar through public access. Both branches should be (and in my experience mainly are) referring prospective clients to colleagues in the other branch of the profession where that is in the interests of the particular client.
I’m not afraid of explaining the pros and cons of both options to existing or prospective clients – many will quite sensibly still choose to go/continue down the traditional route of instructing a solicitor, and letting them decide if and when to instruct a barrister. And that’s fine. After all, it’s all about consumer choice, not protectionism.