New Terms of Engagement for barristers
On the 27 July, the Legal Services Board consented to a change in the Cab Rank Rule of the Bar Code of Conduct to replace the current Terms of Work with new standard contractual terms. The practical effect of the changes will be as follows:
1. The Terms of Work on which barristers offer their services to solicitors and the Withdrawal of Credit scheme (the most common basis of instruction), as reproduced in Annexe G1 of the current Code of Conduct, together with the contractual version of those Terms at Annexe G2, will be abolished.
2. These terms will be replaced in the Code by the “Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised Persons 2012”.
3. The Cab Rank Rule will be amended so that, instead of applying to the Terms of Work referred in point 1 above, it will apply to the new Standard Conditions of Contract AND to the terms which the barrister or his chambers have published as the barrister’s standard terms. The usual exceptions to Cab Rank Rule will continue to apply e.g. not being available, being professionally embarrassed etc.
4. The new Standard Conditions of Contract have been drawn up so that they apply not just to solicitors, but to all “Authorised Persons”, which here refers only to persons/ bodies authorised by the Law Society/Solicitors Regulation Authority under paragraph 18(1)(a) of the Legal Services Act 2007.
5. The new Standard Conditions will NOT operate as default terms.
6. Barristers are still free in any individual case to agree different terms or, if they wish, to agree to no terms, and may amend the new Standard Conditions of Contract (subject of course to Bar Code of Conduct obligations).
7. The Withdrawal of Credit List will be replaced by an advisory List of Defaulting Solicitors. The effect of this is that it will no longer be a Code of Conduct requirement to refuse work on credit from solicitors named on the Withdrawal of Credit List. Instead, barristers will have the right, under the amended Cab Rank Rule, to refuse instructions on credit from solicitors named on that List if they so wish. The advisory List of Defaulting Solicitors will apply only to solicitors.
8. The complaints procedure for the List of Defaulting Solicitors will be very similar to the present Withdrawal of Credit Scheme, except that complaints to the Bar Council can only be made in respect of non-payment of joint tribunal awards or where judgment has been given for unpaid fees arising from work carried out under the new Standard Conditions of Contract.
9. Under transitional arrangements, the solicitors named in the Withdrawal of Credit List will be transferred to the List of Defaulting Solicitors. Although the current Terms of Work will no longer exist when this change takes effect, complaints can continue to be made to the Bar Council in respect of work that had been carried out under those Terms of Work.
It is anticipated that these changes will be put into effect at the end of October 2012, but further information will be issued to the Bar, together with guidance. The new Standard Conditions and changes to the Code of Conduct can be found on the Bar Council’s website under http://bit.ly/R8wFPu Please do not hesitate to contact Janice Marshall on JMarshall@BarCouncil.org.uk (direct line 020 7611 1375) if you have any queries or require further information.
