The BSB proposes that it is in the public interest to continue to have a specialist regulator of advocacy and related services; and that, given its experience and expertise as a regulator in this field, it is well placed to regulate entities as well as individuals. It recognises that the future for advocacy services may lie in business entities, as well as in the referral Bar.
More importantly, the consultation is about barristers’ permissions to practise. Barristers can already work in businesses as employees and as managers of law firms and recognised bodies (LDPs) and the BSB has already decided in principle to allow barristers to work in Barrister Only Entities (BOEs) – partnerships or limited companies. The question is whether the remaining restrictions on conducting litigation should be removed so that barristers can provide a “one stop shop” service, direct to lay clients. The majority of barristers recently surveyed by the BSB wanted more direct access.
New business structures may well be an opportunity for the Bar to become more competitive. However, barristers, clerks, and all those involved in the supply of advocacy services, will need to make some important judgement calls – whether clients will need barristers to conduct litigation as well as doing advocacy and giving advice, how clients can be expected to pay for these services, and how they can manage conflicts and preserve the principles of non-discrimination and the cab-rank rule.
A key question is how clients should pay for services and receive money from court awards and settlements, if barristers are permitted to conduct litigation, but are not permitted to hold client money. The current regulatory regime for holding client money, overseen by the SRA, is enormously costly and complex and the BSB will not be able to replicate it. Instead, the BSB is developing an alternative proposal, which will involve money held in a “custodian” arrangement, allowing more streamlined, cheaper regulation.
Whilst it is not the BSB’s role to find commercially viable solutions to the enormous pressures facing today’s barristers, it is the role of the regulator to find a solution which can work with any commercial plans that barristers may have. This is partly why the BSB commissioned a YouGov survey earlier this year, to find out the future business intentions of barristers and clerks. The BSB will continue to work closely with the Bar Council to ensure entity regulation would be both workable and desirable for the Bar, and for those who use its services. The BSB’s autumn “roadshow” events will be a chance for barristers and their colleagues to find out more about entity regulation whilst feeding back their views.
For more information visit www.barstandardsboard.org.uk/consultations/OpenConsultations/regulatingentities/
Samuel Condry, Senior Policy Officer, Bar Standard Board