Slimmed-down Bar transparency regime to go live in May

MacLeod: New rules will improve the information available to the public

The Bar Standards Board (BSB) has curbed some of the areas where public access barristers will have to provide price transparency as it named May 2019 as the start-date for the new regime.

The regulator has also rejected objections to it going further than the Solicitors Regulation Authority (SRA) has in certain respects – including requiring barristers’ websites to link to the decision data on the Legal Ombudsman’s (LeO) website, where consumers will be able to see if any complaints have been made and upheld against them.

Subject to Legal Services Board approval, the new rules will come into force in May, with compliance spot-checking by the regulator starting from 2020.

Last year, the BSB backtracked on its initial plan for publishing prices and service information – as required by the Competition and Markets Authority – most notably by suggesting that instead of putting hourly rates on their websites, chambers should simply have to tell potential clients to contact them for a quote.

This would still show a commitment to transparency, the BSB said.

All barristers’ websites will still have explain their most commonly used pricing models, details of the services they offer, and guidance around timescales for work.

However, public access barristers will have to provide more detailed pricing information, including indicative prices, in relation to eight types of work:

  • Employment tribunal cases (advice and representation for employers and employees);
  • Financial disputes arising out of divorce;
  • Immigration appeals (First-tier Tribunal);
  • Inheritance Act advices;
  • Licensing applications in relation to business premises;
  • Personal injury claims;
  • Summary-only motoring offences (advice and representation for defendants); and
  • Winding-up petitions.

Child arrangements arising out of divorce or separation has been dropped from the list following lobbying from the Bar Council and Family Law Bar Association, which argued that it would be difficult to provide accurate indicative fees in an area where cases were not standardised.

At last night’s meeting of the full BSB board, lay member Lara Fielden expressed concern that this could inadvertently encourage vulnerable clients to seek the help of cheaper McKenzie Friends.

Ewen Macleod, the BSB’s director of strategy and policy, allayed her fears by offering to highlight this issue in the guidance the regulator will issue before the rules come into force.

There were also concerns in the responses to the BSB’s final consultation on the rules about outlining fees for financial disputes arising out of divorce and Inheritance Act work; although these could sometimes be straightforward, they could also be very complicated.

The BSB compromised by deciding that price transparency should only apply when, in the case of divorce work, the joint assets were worth less than £300,000, and for Inheritance Act work the deceased person’s estate was worth less than £300,000.

There were objections that solicitors were not being required to provide price transparency in some of the fields that barristers were, specifically personal injury, family, Inheritance Act and winding-up petitions.

The BSB said: “While the SRA not applying price transparency requirements to services may inhibit comparison and competition to some extent, we propose to continue to do so.

“This is because doing so will provide less experienced, less expert and more vulnerable clients with beneficial information remedies.

“It will also support the BSB’s policy objective… of having the greatest impact on the legal services market.”

On requiring a link to LeO’s decision data, consultees were worried about the potential for the decision data to discourage clients from selecting a particular barrister simply because a number of complaints have been made against them, even if not upheld.

They also observed that the SRA was not requiring those it regulated to link to LeO’s decision data or its register, where details of practising status and disciplinary findings could be accessed. The BSB is mandating this too.

The BSB board was told: “We know that LeO’s decision data include complaints received alongside complaints upheld, but the useful figure for clients will be complaints upheld and we believe there is a public interest in giving clients access to this information.

“The requirement should also incentivise barristers to ensure that complaints, insofar as possible, are effectively handled and resolved at the first-tier stage.

“We consider it unlikely that the absence of any similar obligation on solicitors will place barristers at a competitive disadvantage.”

Mr Macleod said: “We are confident that, subject to final approval by the Legal Services Board, these new rules will improve the information available to the public to allow them to engage the right barrister for their circumstances, whilst not burdening the profession with unnecessary new requirements.”

Price transparency for those regulated by the SRA and Council for Licensed Conveyancers began in December.

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