The Bar Standards Board (BSB) should this month finally approve standard contractual terms for barristers instructed by solicitors, after a decade in the making.
The full board has one final point to decide before giving them the green light – whether to make it a rule that a barrister need only accept work under the cab rank rule if offered on the new contractual terms (NCT).
The NCT were developed by the Bar Council, after long-running talks with the Law Society to agree standard terms broke down, but the BSB has to make the application for approval to the Legal Services Board, a cross-over in functions that has caused some issues.
Charles Hollander QC, who chairs the BSB’s standards committee, told last week’s BSB full board meeting that it was “frankly ludicrous” that barristers currently worked on non-contractual terms, especially as the Solicitors Regulation Authority (SRA) removed the professional obligation on solicitors to pay barristers’ fees in 2007.
Further, the Law Society has indicated that it may seek to challenge on the grounds of competition law the current withdrawal of credit scheme, which prohibits barristers from accepting work from “blacklisted” non-paying solicitors without them paying fees upfront.
The scheme is to be replaced with a new “list of defaulting solicitors”. Barristers would be entitled, but not obliged, to refuse to work for solicitors on the list without payment in advance.
The standards committee recommended that the NCT should apply to work under the cab rank rule, unless the chambers has its own terms, saying there has to be “some sort of clear identification of what terms the cab rank rule applies to”.
It continued: “The alternative of having the cab rank apply to any ‘reasonable’ terms would be unworkable in practice as disputes would inevitably arise as to what was ‘reasonable’ and in any event barristers would find themselves in impossible situations where briefs were delivered with too short a time to determine if the proposed terms were reasonable.”
However, board member Patricia Robertson QC argued that there may be circumstances where a barrister would want to tailor the NCT for a particular matter but would be unable to do so as the new rule was drafted. She suggested that rather than having the NCT in the Bar Code of Conduct, the code should make provision for “reasonable” terms, with guidance making it clear that the NCT are reasonable.
The board wanted to see how this would look on paper and so will review the issue for one final time at its meeting later this month.
Otherwise the board was happy with some final amendments to the NCT and the standards committee’s recommendation that the NCT do not become default terms in the event of no agreement between barrister and solicitor – which had been the Bar Council’s hope.
The committee decided that the absence of Law Society and SRA agreement made such a move “highly contentious and problematic”, and in any case it was not the role of a regulator “to protect inept barristers from failing to operate their practices efficiently”.
It said: “If barristers cannot work out what terms they are working on, it should be their own look out.”