The Bar Standards Board (BSB) is investigating the extent to which barristers have been accepting work from solicitors without entering into contracts, or accepting terms “contrary to their regulatory obligations”.
Launching a call for evidence on the standard contractual terms and cab rank rule, the BSB said yesterday it was carrying out the investigations as part of its “current round of supervision activity”.
The regulator said that “feedback from stakeholders” suggested that many chambers were not routinely entering into contracts with solicitors, which may result in them failing to comply with rules requiring written acceptance of instructions and the basis on which barristers are acting, including fees.
The BSB said it was also concerned that “solicitors may be seeking to impose their own terms”, which could be contrary to barristers’ obligations if there was no right to be paid or clarity on the issue.
It emerged this summer that the BSB had received reports of solicitors using “bullying” tactics to impose contractual terms on barristers. This was followed by complaints from Brian Lee, chair of the Institute of Barristers’ Clerks, that law firms were imposing contracts on barristers they would never sign themselves.
In the call for evidence, the BSB said it changed the code of conduct early last year, so that barristers would only be obliged to accept instructions under the cab rank rule if they were offered on the basis of the new standard terms or the barrister’s own terms.
The BSB said it was gathering evidence on the way barristers were being instructed and the frequency with which the cab rank rule was being invoked.
The board said non-payment of fees or uncertainty as to payment could have an impact on its regulatory objective of encouraging an “independent, strong, diverse and effective legal profession.”
The call for evidence will close on 19 December, after which the BSB said it would consult further if any rule changes were needed.
A BSB spokesman added: “The aim of this review is to challenge any prior assumptions and investigate whether alternative approaches might be feasible, without undermining either the principle and effectiveness of the cab rank rule or the regulatory objectives.”