An end to the bans on self-employed barristers conducting litigation and sharing premises or forming associations with non-barristers is in sight as the Bar Standards Board (BSB) laid out the first stage of its major liberalisation programme.
Submitting its new Handbook for approval by the Legal Services Board, the BSB said it is proposing a regulatory model that will have “fewer risks for clients, fewer overheads for legal professionals and hence the possibility of lower-cost services to clients of limited means”.
Once approved, it will come into force in January 2014. The next step will be for the BSB to apply to regulate entities – which it hopes to start doing at the start of 2014 – followed by an application to become an alternative business structure (ABS) licensing authority. The plan is to start licensing advocacy-focused ABSs in the second half of 2014.
The Handbook application said: “The market for legal services is changing. On the supply side, there is growing competition between barristers and solicitors for advocacy and, in future, litigation work, with greater fluidity between different types of practice and regulatory regime (with barristers increasingly having the option to choose between different business structures and/or regulator).
“Barristers are coming under pressure to pool their risks or invest jointly in their businesses. This version of the Handbook is less prescriptive about the ways in which self-employed barristers in particular can adapt their business model to form associations with others…
“At the same time the development of new technologies and outsourcing arrangements are increasing the ways in which clients can access barristers’ services – this is being further driven by new business models and brand names entering the market. There are also an
increasing number of unregistered barristers able to provide unreserved legal services direct to clients or as part of larger entities.”
On the demand side, a reduction in public funding is one of the factors driving greater demand for value for money, and fixed-fee services, it said.”Increasingly, clients expect ‘one-stop shops’ and direct access with targeted legal advice for those of limited means, whilst more sophisticated clients are seeking specialist consultancy services with no ‘middle man’. The increasing availability of online sources is making ‘shopping around’ easier for clients.”
The BSB argued that the range of litigation activities barristers can already undertake meant ending the ban on formally conducting litigation – and so allowing them to sign a claim and issue proceedings – would not be a major step.
“Whilst the referral model remains robust for those cases which require and can afford a division of labour between advocate and litigator, there is a need to allow greater flexibility in service provision in cases where this is not so,” it said.
“The BSB anticipates a market for privately funded work where clients involved in litigation have a choice between the traditional referral model, one-stop services supplied either by solicitor-advocates or by barristers who also provide litigation services, public access services where the barrister provides advocacy and advice but the client conducts the litigation and ‘spot’ purchases by self-represented litigants of advice or assistance with particular aspects of their case.”
Only barristers (not pupils) whom the BSB already regulate in respect of their advocacy services will be able to apply to undertake litigation. They will ordinarily be expected to have completed public access training.
Allowing barristers to share premises and form associations with non-barristers “will enable barristers to work in new ways”, it said, but the Handbook introduces safeguards to deal with risks such as evading regulation by outsourcing, and conflicts of interest when a barrister has an interest in a business to which he refers a client or which refers clients to him.
Other significant changes in the Handbook include:
- The rules regarding the administration of chambers – which currently only apply to the head of chambers and members of management committees – will be extended to all members of chambers (meaning, for example, that junior barristers will have to take “appropriate action” if they are aware of breaches);
- All of the core duties will apply to unregistered barristers;
- Breaching any rule of the code of conduct – rather than only certain ones as now – could lead to the BSB imposing administrative sanctions;
- The maximum administrative fine for individual barristers will rise from £300 to £1,000 – it will be £3,000 for an entity; and
- The BSB will have disqualification powers over non-authorised employees working in chambers.