Moriarty: retaining the list could compromise “regulatory independence” of BSB
Plans by the Bar Standards Board (BSB) to scrap its ‘list of defaulting solicitors’ have been approved by the Legal Services Board (LSB).
In its place, the BSB will introduce a new rule allowing barristers to refuse work under the cab-rank rule where there is an “unacceptable risk” that they will not get paid.
The BSB decided at a board meeting last month, following a review, that it would retain the existing cab rank rule, together with the standard contractual terms introduced in 2013.
Under the current rules, barristers are not required to accept instructions from a professional client whose name appears on the ‘list of defaulting solicitors’, a list produced and maintained by the Bar Council.
In his decision notice, Richard Moriarty, chief executive of the LSB, welcomed removal of the list from the BSB’s regulatory arrangements.
“The LSB’s view is that including such a list, produced by the representative arm of the Bar Council, within the regulatory arrangements risks compromising the regulatory independence of the BSB.
“Section 30 of the [Legal Services] Act requires regulators to separate representative functions from regulatory functions. This principle of separation within approved regulators is regarded as key to achieving the regulatory objective of protecting and promoting the public interest.”
Mr Moriarty predicted that replacing the list with a more general provision “may widen the circumstances in which barristers can refuse a client”.
Having considered the BSB’s application for a rule change against the criteria set out in the Legal Services Act, he granted the application.
Approval by the LSB means that the drawn-out cab-rank saga could finally be brought to an end.
The LSB launched an investigation into the Bar Council’s involvement in the rule change in 2013, which was only resolved when the Bar Council gave a number of undertakings.
One of them was that by 31 July 2014, the BSB would review whether it was appropriate for standard terms and the related cab-rank rule – that the rule does not apply other than where a barrister is instructed under the terms, or under their own terms – to remain as regulatory arrangements. Having failed to meet the deadline, Vanessa Davies, director of the BSB, apologised at the end of last year.
