Whilst neither professional body wished to, nor could, insist on only these new contractual terms being used, it was envisaged that both the Bar Council and the Law Society would be able to recommend them as model terms to their respective members for use in the absence of alternative terms having been agreed. Having settled these new terms, except for some minor peripheral changes, the Bar Standards Board (“BSB”) submitted an application to the Ministry of Justice (“MoJ”) in December 2008 for approval of the necessary consequent changes to the Code of Conduct, particularly the Cab Rank Rule. Regrettably, the Law Society subsequently stated that they could not be seen to agree the terms or promote them to their members. As a consequence, the BSB’s application to the MoJ was put on hold and subsequently lapsed.

The revised terms

However, the opportunity was taken by the Bar Council to draw up much simpler contractual terms and it is these revised terms upon which the Bar Council is consulting with members of the Bar, approved regulators of the legal profession and other interested parties.

The Bar Council and the BSB have long considered that the current basis on which barristers are engaged by solicitors in privately funded work is both outdated and unsatisfactory. The present, non-contractual, honorarium basis of payment is an anachronism. It fails to address the need for clarity in relation to the professional obligations of barristers and solicitors to each other and to the lay client, and lacks an effective method of enforcement of those obligations and rights. As a consequence, the present system has an adverse effect upon the strength and diversity of the Bar, with many barristers being faced with unacceptable delays in collecting fees and having to write off significant amounts owing for want of an effective enforcement process. This is a particularly acute problem for barristers in the early years of practice – especially those with limited means. Consequently, the Bar Council and the BSB are strongly of the view that the basis on which barristers are engaged by solicitors in matters which are not publicly funded must change in order to maintain access to justice and to promote a strong, competitive and diverse legal profession.

List of defaulting solicitors

These new contractual terms apply only to privately funded matters, or where the solicitors would pay counsel direct. However, the consultation is of interest to barristers undertaking publicly-funded work as it is proposed that the Withdrawal of Credit Scheme be replaced by an advisory List of Defaulting Solicitors’ Scheme. It is envisaged that the List of Defaulting Solicitors would not only apply to solicitors who defaulted on payment of privately-funded matters, but also to those who failed to carry out their obligations to ensure barristers are paid in respect of publicly-funded matters. To fail to provide this protection mechanism for barristers would be contrary to the objective of encouraging and supporting an effective legal profession and could force many barristers out of the market for economic reasons. By the very nature of these cases, the lay clients are predominantly in the lower socio-economic groups and therefore a strong and effective legal profession is essential for their protection.

Of course barristers and solicitors will continue to be free to agree any terms or no terms and in any event, whether adopting the proposed new contractual terms or not, will freely negotiate the rates of the barrister’s fees.

The consultation 

The consultation paper, “Contractual Terms of Work”, can be found on the Bar Council’s website, www.barcouncil.org.uk/consultations/ContractualTermsConsultation/, and the closing date for responses is 31 July 2010.
Depending upon the outcome of this consultation, an application would be made to the Legal Services Board for approval to the necessary Bar Code of Conduct amendments with a view to introducing these new terms in 2011.

It is in the interest of all involved in justice that there should be a strong, diverse and effective Bar. Removing one of the obstacles to obtaining payment will help break down the barriers to entry to the profession for those from less advantaged backgrounds and go some way towards helping the most vulnerable members of the Bar in their dealings with the small minority of solicitors who abuse the system. At the same time, clarifying and enabling the enforcement of rights and duties of both barristers and solicitors can only be beneficial to any client needing access to justice. I do hope therefore that readers will readily respond to this consultation.

Sarah Asplin QC, Chairman, Contractual Terms Implementation Committee of the General Council of the Bar

The four main areas

Views are being sought on the following issues, namely whether:

(1) the existing terms of work and Withdrawal of Credit Scheme should be abolished and replaced by the proposed new contractual terms
(2) the proposed new contractual terms should become the standard basis of accepting instructions in the absence of alternative terms having been agreed
(3) the Withdrawal of Credit Scheme should be replaced with an Advisory List of Defaulting Solicitors, giving barristers the option to accept or refuse instructions from such solicitors
(4) the Advisory List of Defaulting Solicitors should also apply to publicly-funded cases.