The Bar Standards Board (BSB) has backtracked on many of the elements of its plan to force barristers to publish prices and service information – most notably by suggesting that instead of putting hourly rates on their websites, chambers should simply have to tell potential clients to contact them for a quote.
It also pulled back from applying any new requirement to referral barristers, meaning they will only be for public access barristers.
Last night’s meeting of the BSB’s governing board backed a new way forward on implementing the Competition and Markets Authority’s (CMA) demands for greater transparency in the legal market, having considered some critical responses to a consultation it issued last autumn – not least from the Bar Council.
The paper approved by the board said there were concerns from consultees that “a lack of competition in the type of bespoke legal services most often provided by barristers has not be evidenced, and that heavily caveated information may lack utility and cause confusion for consumers of these services”.
It continued: “Many responses from the profession argued that the nature of the disclosure envisaged by the CMA’s recommendations is not appropriate for the majority of barristers’ services.
“There were also concerns about potential unintended consequences, such as barristers publishing aspirational, rather than realistic, rates.”
As part of developing “a more appropriate approach”, the BSB said it would instead consider a requirement that chambers’ websites state that clients may contact chambers to obtain a quote.
“This would demonstrate a commitment to transparency and facilitating shopping around without either risking consumer confusion, or overburdening barristers and chambers,” the paper said.
“It would also help to avoid inexperienced consumers of legal services simply relying on any published rates without considering that a discount might apply to their particular case.”
The BSB said it would consider a requirement for chambers’ websites to state their most commonly used pricing models.
The regulator is carrying out transparency pilots and the paper left open the possibility that there may be some areas where price publication was “necessary and appropriate”.
The BSB decided that the transparency requirements would only apply to public access barristers, and even then most likely only to chambers with 10 or more barristers providing “a significant proportion of their services on a public access basis, and commonly to less experienced and less expert consumers (and/or in high-risk practice areas such as immigration and family law”.
This would make compliance more manageable and also not discourage barristers to undertake such work, it said.
This would also be “more likely to achieve the CMA’s recommendation of delivering a step change in standards of transparency”.
In any case, the requirement is likely to be that those affected will only need to produce a minimum of three illustrative price and service scenarios.
The original consultation proposed that transparency rules also apply to referral barristers undertaking referral work where the client is entitled to complain to the Legal Ombudsman – mainly individuals, ‘micro’ businesses, small charities and trustees of small trusts.
However, the paper accepted the argument put by the profession that, as barristers undertaking referral work were instructed by solicitors, there was no need for significant further consumer protection.
The consultation also suggested that barristers should be required to publish first-tier complaints data – that is, complaints made directly to them – on their chambers’ website.
This was opposed by the profession and the BSB accepted that such data “would not be the most useful quality of service indicator at this stage”.
The paper said: “We will therefore consider a requirement for chambers’ websites to link to the BSB register to enable clients to search for a barrister’s regulatory status and any associated current disciplinary findings…
“We will also explore the feasibility of a similar arrangement for complaints which have been upheld by the Legal Ombudsman.”
The BSB’s current timeline is that there will be a consultation on the rule changes this autumn before they are submitted for approval by the Legal Services Board this time next year.
The plan is that they would come into force in April 2019 and compliance would be required from January 2020.