Are you ready? The new contractual terms come in on the 31 January 2013
On the 31 January 2013, the commonly used terms of engagement for barristers taking instructions from solicitors, namely the Terms of Work and the Withdrawal of Credit Scheme (in Annexe G1 and G2 of the Bar Code of Conduct) will be abolished. On the 31 January, the Bar Code of Conduct will be amended so that the Cab Rank Rule applies to instructions offered on the basis of new Contractual Terms or the barrister’s own published terms of engagement. This means that instead of the Cab Rank Rule applying to the present Terms of Work, it will apply to these new Contractual Terms or the barrister’s own published terms.
The new contractual Terms are for use for instructions from solicitors and all persons/bodies authorised by the Solicitors Regulation Authority (SRA) to carry out legal services under the Legal Services Act 2007. The Terms enable barristers to sue for unpaid fees and have been drafted for use in privately funded matters or matters where the barrister is not paid directly by the Legal Services Commission (LSC) or the Crown Prosecution Service (CPS). The new Contractual Terms would only apply to Conditional Fee Agreement (CFA) cases if the CFA incorporate these Terms.
The new Contractual Terms or the barrister’s own published terms will not become the “new” default terms. Default terms are no longer required as barristers/chambers are obliged to publish their normal terms of engagement under the Provision of Services Regulations 2009. Barristers will continue to be free to agree any terms or no terms or amend the new Contractual Terms.
The Withdrawal of Credit List will be abolished and, in its place, there will be a List of Defaulting Solicitors and other Authorised Persons. Another change to the Code will be that, instead of a barrister being forbidden to take instructions on credit from solicitors named on the Withdrawal of Credit List, the barrister will have the right under the Cab Rank Rule to refuse instructions on credit but, equally, can decide to accept instructions.
As a matter of urgency, barristers and chambers need to do the following:
1. Decide what terms to adopt as the normal terms of engagement, to be published or to be referenced on the chambers’ website. Publishing terms does not prevent barristers from agreeing alternative terms with clients as the need arises
2. Advise existing solicitor clients of any intended change in terms, and
3. Review acceptance of instruction letters and website to ensure that they refer to any revised terms of engagement.
The new Standard Terms changes to the Code of Conduct can be found on the Bar Council’s website under http://bit.ly/ RKu3Jd. The Guide on using the new Standard Terms can also be found on the Bar Council’s website.
For further information or clarification, please contact Janice Marshall, Implementation Committee Secretariat at the Bar Council on: 020 7611 1375 / JMarshall@BarCouncil.org.uk.
