Barristers unhappy with BSB warning on commercial pressures

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18 May 2016


BSB: barristers concerned about “judgment on their integrity”

Barristers have complained that the decision of their regulator to make public the risk of commercial pressures damaging the Bar could on its own have a negative impact on the profession’s reputation.

A symposium held by the Bar Standards Board (BSB) last month to discuss its first risk outlook also heard reports of “growing anxiety among young barristers” that chambers were increasingly being run as corporate organisations, rather than collectives.

The outlook warned that commercial pressures were pushing barristers to take risks, and a BSB summary of the event reported that some barristers “were very concerned that in emphasising this risk, we imply that providers are likely to respond to those pressures by compromising their ethical standards” or lowering standards.

“This could raise doubts among the public about ethics at the Bar, which could erode confidence in it. In this way, by drawing attention to a potential risk in the future, we may be creating a new – and very real – risk in the present.

“A few barristers were concerned it could be interpreted as a judgment on their integrity.”

The BSB went on: “There was also debate about the evidence base for this risk. During the discussion, we made clear that we draw on data from a wide range of sources, including the complaints that we receive about barristers.

“Although there is no sign of an increase in formal complaints, it is unclear whether this reflects a healthy market, or simply the fact that commercial pressures are often ‘invisible’ and subtle.”

The BSB said participants at the symposium went on to identify “a number of potential areas of concern”, including “reports of growing anxiety among young barristers that chambers are increasingly being run as ‘corporate’ organisations, rather than as collectives of self-employed barristers”.

Coupled with the regulatory focus on chambers and entities rather than individuals, participants suggested this could erode the principle of individual responsibility at the Bar.

Further issues raised at the symposium included:

  • Concerns that the high failure rate of the ethics component of the Bar professional training course “reflects the inadequacy of ethics training”;
  • The high cost of Bar training leaves new practitioners “saddled with debt, which may add to commercial pressures”; and
  • Referral fees presented a “serious threat” to ethical practice and, “as long as other regulators and professional bodies are more tolerant, there will be pressure on barristers who need or want this kind of work to sidestep the ban and pay some kind of referral fee”.

The BSB report said: “We are clear that our decision to focus on commercial pressures reflects our concern that the impact of these risks could be high, even if the likelihood of these risks materialising might be low, or as yet unknown.

“Participants were equally clear that work is needed – in conjunction with others – to better understand the nature of these risks, and how to monitor and mitigate them.”

Suggestions for further action included further research, maintaining “robust opposition” to referral fees and working to increase public understanding of the issues in a way that “does not erode public confidence in the Bar”.

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