Scott-Moncrieff: Bar’s proposal favours the barrister

The Law Society has urged solicitors to protect themselves against the new terms of business being introduced by the Bar next week because they are “weighted strongly” in favour of barristers.

From 31 January the traditional default system of non-contractual terms will be replaced by new standard conditions of contract that will allow barristers – and solicitors – to sue on them in court.

Controversially, the cab-rank rule will apply only to work undertaken on the new standard conditions or on terms which barristers or their chambers have published as their standard terms.

The withdrawal of credit list will be replaced by an advisory list of defaulting solicitors and barristers will have the right to refuse instructions on credit from those on it.

Issuing a practice note yesterday, the Law Society said that although the new standard conditions are not formally default terms and barristers will be free to adapt them or agree different terms, “it is likely that the majority of chambers will adopt the new terms wholesale”.

The note said: “The Law Society is concerned that, under the terms, the balance of obligations is weighted strongly in favour of barristers. It is our view that the relationship between solicitors and barristers is a commercial one, the terms of which ought to be agreed between themselves. It is, however, open to solicitors to negotiate alternative terms.”

The practice note included a model letter for solicitors to send to barristers seeking changes to the contract terms and offering “alternative and more equitable wording”.

It identified nine clauses raising concern, particularly around fees and payment, as well as a bid to limit barristers' liability. One provides for an agreed hourly rate to be subject to reasonable periodic review by the barrister and entitles the barrister to treat an agreement as terminated if the solicitor does not agree to any variation of the rate. The society said: “There may well be obvious difficulties with this and you should discuss with your client whether they are content for this to be agreed.”

The terms also require the barrister to give express written permission if a solicitor or lay client wishes to use copies of the barrister’s work product for purposes other than those for which it was prepared.

The practice note said: “You may wish to consider how far this clause may affect your firm's knowledge management systems and how it works with the existing general law with regard to intellectual property. You may wish to agree reasonable rights with the barrister to contain advice in your firm's knowledge management systems for internal guidance only. In addition, you should discuss this clause with the client and your insurers before agreeing to it.”

Law Society president Lucy Scott-Moncrieff said: “Of course there should be a contract to bring the commercial relationship between solicitors and barristers in line with standard practice rather than the previous outdated system. However, there must be a balance between the two interests and most importantly, that of the client.

“In our view, the Bar’s proposal favours the barrister and gives the solicitor – and therefore the client – insufficient control or effective remedy in the event of inadequate performance by the barrister.”

More than a decade ago the Bar Council and Law Society first began discussing an overhaul of the non-contractual terms of work but the talks collapsed in 2008, after which the Bar Council has worked unilaterally to develop the new standard conditions.

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