Competition between solicitors and barristers is to step up a gear with Bar Standards Board plans to allow counsel with less than three years’ practising experience – so-called ‘baby barristers’ – to start accepting public access instructions.
It is also proposing to lift the ban on barristers accepting public access instructions where the lay client may be eligible for public funding.
Direct access to the Bar is becoming an increasingly prominent feature of the changing legal market, and papers before the full board of the BSB last week said: “The newly qualified Bar provides a rich source of expert legal services at an affordable cost, and the BSB does not consider that it is proportionate regulation to prevent these barristers from representing clients in appropriate cases.
“Put simply, the current rule unnecessarily limits consumer choice and hinders access to justice.”
Papers before the board acknowledged that the key regulatory risk in relaxing the three year rule is that newly qualified barristers will undertake work that they do not have the required experience or competency to handle.
“This is a risk that applies to all barristers across all areas of work, not just newly qualified barristers thinking about undertaking public access work,” it said. “The Code of Conduct has very clear rules in place that mitigate this risk and the BSB is aware of no evidence to suggest that barristers are not complying with these rules.”
Research among existing public access barristers showed that 58% have declined instructions, with the most common reason that it was in the client’s interest to instruct a solicitor. It also showed work divided fairly equally between advocacy and advice, while employment, family, chancery and commercial were the most popular areas of public access instructions.
The draft application for approval of the changes that will be sent to the Legal Services Board noted that one reason the public access rules were initially extended to privately paying family, crime and immigration, was to help barristers compete with solicitors. “The need to compete is arguably most acute at the lowest end of the young Bar and a relaxation would assist in this regard.
“The Bar, and particularly the young publicly funded Bar, is under great strain. There has been a reduction in fees combined with a sharp increase in solicitors retaining more and more briefs in-house. The current rules prohibit barristers from competing on an even footing and risk driving away talented people from all backgrounds joining the profession.”
In its response last year to a BSB consultation, the Law Society opposed the change, arguing: “Dealing directly with clients requires a level of maturity and expertise which the majority of entrants to the profession cannot be expected to possess, and it is right that they should achieve a level of expertise and be subject to proper supervision before seeing clients on their own account.”
On the legal aid rule, which has caused considerable difficulties for some barristers, the BSB argued that in some cases clients prefer not to accept legal aid because the contribution they have to make is greater than the amount charged by a public access barrister. In others clients may live in an area with no or few solicitors who do legal aid work, or they may simply wish to have a wider choice of advocate.
The BSB said the risk of a client choosing a public access barrister when they would be better off seeking legal aid funding is outweighed by the importance of the client’s choice of legal representation, provided they are “in a position to make an informed decision about whether or not to apply for legal aid”.