Public access barristers will be able to compete more effectively with solicitors for legal aid clients under an urgent rule change being considered by the Bar Standards Board (BSB).
However, both the speed of and the motivation for the move have been criticised by the Legal Services Consumer Panel.
The problem has arisen over whether public access barristers can accept direct instructions from a lay client who might be eligible for legal aid but makes an informed decision not to take advantage of it.
The BSB said “a number of barristers” believed they could – Legal Futures has found at least one chambers’ website that says this – but in fact rule 3.1 of the public access rules simply prohibits a barrister from accepting instructions when the client may be eligible for legal aid, with no qualification. The aim was to protect consumers who might instruct a barrister without understanding the cost consequences.
In a letter sent to barristers last month, the BSB said: “It has become apparent that the Bar Council, the Criminal Bar Association and a number of criminal practitioners… believe very strongly that this rule should be changed. It is said that in the criminal field in particular there are clients who are entitled to the benefit of public funding but for whom it would be a rational decision not to seek it, but to instruct a barrister privately under the public access scheme.”
As an example, this could be where the client would have to make a contribution to his public funding which exceeds what he would pay a barrister alone under public access.
A consultation started on 20 July and closed on 12 August, with “the urgency that has been expressed by practitioners” given as the reason for the short period over the summer period.
Responding to the consultation, consumer panel chairwoman Elisabeth Davies said it supported the change in principle as it would increase choice and competition in the market.
However, she said the panel was concerned that the BSB’s decision to review the rule “appears to be based on professional demand rather than any apparent change in the regulatory risk identified”.
If the change is approved, Ms Davies said the implications of deciding to instruct a barrister directly should be explained clearly, perhaps requiring written consent that the client understands.
“We would also expect barristers to turn down direct access clients where it would be in their best interests to obtain public funding and the greater case preparation and management support provided by solicitors.”
Ms Davies also questioned why such a rapid decision is required on this. “The haste of this consultation appears to be driven by practitioners, rather than the BSB’s assessment of the issue or pressing access to justice concerns.”