LSB tells bar regulator to up its game

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By Legal Futures

1 April 2010

Office environment: any difference between sharing with barristers and sharing with others?

The Legal Services Board (LSB) has told barristers’ regulator that it will need to up its game – and perhaps embrace outcomes-focused regulation – to keep pace with liberalisation of the bar.

Having earlier this week approved Bar Standards Board (BSB) rules permitting barristers to join legal disciplinary practices (see story), the LSB has now rubber-stamped two more BSB applications to amend its rules on self-employed practice and public access to the bar.

However, it said that as restrictions on barristers are reduced, “we consider that the role of the BSB as a regulator will need to continue to evolve”.

The LSB explained: “We expect that the BSB will invest in its skills and regulatory capacity to ensure the risks that have been identified along with others that emerge are appropriately monitored, managed and mitigated. This may be accompanied by a change in focus, away from rules and detailed guidance towards a combination of clear outcomes and risk-based supervision.”

The Solicitors Regulation Authority last week launched a major campaign to consult over its own move to outcomes-based regulation in 2011.

As a result of the relatively limited changes the LSB has now approved, self-employed barristers will be able to:

  • share office premises and facilities with other types of business or entity, subject to safeguards;
  • investigate and collect evidence, and take witness statements (but cannot then accept a brief to conduct the case in court unless their earlier role is unlikely to be challenged);
  • attend at police stations to advise suspects and interviewees (but cannot then conduct any of the proceedings if they might have to give evidence); and
  • conduct correspondence, provided that certain conditions are met.

The LSB questioned the need for various safeguards around sharing premises that are not being applied to barristers practising within the chambers model, saying the BSB had not provided evidence that there were greater risks.

Nonetheless, it did not refuse that part of the application because overall the changes reflect progress towards promoting competition, but asked the BSB to consider the whole issue of premises sharing as part of an evaluation of the effectiveness of these changes within the next two years.

The other application widens the range of work available under the public access scheme to include family, criminal and immigration.

However, the LSB was concerned that because public access barristers are unable to carry out all of the functions of a solicitor, the lay client would have to handle some of the activities that would otherwise be dealt with by the solicitor.

The LSB said it was not possible at this stage to judge definitively whether the impact of the public access changes will be positive or negative for consumers of legal services, but agreed to them because barristers should in general be free to choose how they practice.

It also agreed with the BSB that barristers should be allowed to decide whether a case is suitable for public access, subject to the specific risks posed being identified and managed through monitoring and evaluation, supported by strong penalties when things go wrong. The BSB has committed to a full review of the changes in 18 months’ time.

BSB chairwoman Baroness Deech said: “The BSB is committed to making appropriate changes to permitted practice at the bar to benefit its clients in terms of greater access to barristers’ services, broadening the range of services available from the bar, giving consumers more choice and bringing down costs whilst maintaining the high standards associated with the bar. The BSB is therefore very pleased that the LSB has approved these three applications as submitted.”

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