A place in your practice

As public access goes mainstream, Chris Bryden offers an insight into the merits (and pitfalls) of cutting out the middlemen

Since 2004, barristers have been able to accept instructions directly from the public, without a solicitor being involved. Originally designed for cases without complex factual or evidential disputes, and thus excluding crime, family and immigration, the public access scheme was extended in 2010 to enable barristers in principle to accept instructions in any area of work. There are now over 5,500 barristers who have completed the necessary training and have registered as public access (also known as direct access) practitioners, and a specialist Bar association, the Public Access Bar Association (PABA) which they can join: paba.org.uk.

I have been accepting instructions from members of the public for over seven years, and have seen in that time a significant increase both in the knowledge of the general public of public access and in the level of instructions that I receive. Since January 2011 I have been an accredited provider of the Public Access Training Course through Barristers Direct, a public access brand of the Chambers of Timothy Raggatt QC, 4 King’s Bench Walk. I am also treasurer of PABA and provide the training together with Andrew Granville Stafford, the Chairman of PABA.

Public access work is now mainstream, and recognised as an important and legitimate element of many barristers’ and chambers’ business models. A survey commissioned by the Bar Standards Board (BSB) in 2016 and carried out by Pye Tait suggested that just over half of public access barristers had undertaken up to five cases in the past year and, whilst a relatively small proportion of barristers’ overall caseload, public access instructions had increased markedly over the past three years. (See the BSB’s Research into the public access scheme, bit.ly/2tFBqca and Public and Licensed Access Review Report (2017) at bit.ly/2v2gSdu.) Public access was most commonly used in family, Chancery, employment and general common law. Whether these findings were based on a sufficiently large sample (only 404 public access barristers responded to the survey) is open to debate. However, the upward trend in instructions does seem to be borne out also by anecdotal evidence and the experience of this author.

Portal to a vast market

Given the number of barristers now qualified to undertake public access work, it is not surprising that there are various methods by which instructions can be sought. The Bar Council operates the Direct Access Portal, essentially a database of public access barristers that members of the public can use to contact members directly. Many chambers have their own portals, such as Barristers Direct or Clerksroom. There are other commercial portals such as MyBarrister and Shensmith Barristers, which for a fee will sign up barristers as members and direct the public towards them. Some barristers have their own websites (as I do). But instructions also come from referrals, recommendations, word of mouth or a chance encounter. Ultimately, the market for public access instructions is vast.

Upsides and downsides

There are a number of great benefits to barristers of the public access scheme. These include the ability to require payment up front as a condition of accepting the instructions, meaning that there is no need to chase for fees or run up an aged debt; the simplicity of dealing directly with a lay client; and that the cab-rank rule does not apply to public access work, meaning that there is no obligation to accept instructions (subject to r.C28, preventing discrimination in the acceptance of instructions). Instructions are normally also accepted on a ‘piece work’ basis rather than in respect of all of the work for a particular case, meaning that, just as when a solicitor instructs counsel, the public access client is instructing for each aspect of the work; the barrister is at liberty not to accept further instructions in the same case if they do not wish to do so. The Pye Tait survey indicated that in the past 12 months, nearly two-thirds of respondents declined between one and five public access cases, the most prevalent reasons being that either the client or the case was not suitable for public access work.

There are also, of course, downsides. When training barristers to carry out public access work, common concerns that are raised include the need to liaise directly with the lay client, with the risk that they will engage in excessive correspondence with the barrister or expect work to be carried out over and above what had been agreed; concerns about the money laundering regulations and their impact; the fact that barristers cannot, unless granted the right to do so by the BSB, conduct litigation; and embarrassment or reluctance in discussing fees and methods of payment. Many of these concerns were also raised in the 2016 survey referred to above.

Compliance matters

The reality is that there are upsides and downsides to any method of instruction. The concerns set out above can all be managed, and in our training course we give clear suggestions on how this can be done. The BSB Guidance for Public Access Practitioners also provides assistance to public access barristers as to the application of the regulatory framework (see bit.ly/2vj5o8S); and experience invariably leads to the implementation of systems to alleviate the concerns raised above. This will include the early managing of the expectations of the client prior to accepting instructions, by setting out the ground rules; in particular that only the work set out in the client care letter will be done; that communication should be by email but kept to a minimum; and that work outside of the scope of the instructions will require a further client care letter and fee. Such a conversation also goes some way towards complying with the obligations of a public access barrister to satisfy themselves that it is in the best interests of the client to instruct directly, rather than via a solicitor.

The money laundering regulations will rarely apply particularly in respect of litigation (though recourse should be had to the detailed guidance in this regard published by the Bar Council’s Ethics Committee – see bit.ly/1kOXJFY). So long as the barrister keeps in mind that no step that would ordinarily be considered solicitor’s work should be taken by them when instructed directly, and have regard to the guidance from the BSB, they are unlikely to fall foul of the prohibition on conducting litigation. And in respect of money – the world has moved on. Clients expect an upfront discussion and a fixed fee, which can often give a competitive edge. If some barristers remain squeamish about discussing and receiving money directly, they can always delegate this function to their clerks.

Usurping the solicitor’s role?

The other concern, of course, is that accepting instructions directly from the public could be seen as usurping the role of the solicitor. In 2011 when criminal, family and immigration practitioners were starting to become involved with public access work, a common question during training was what the reaction of solicitors was likely to be. While I have experienced some limited hostility, most solicitors understand that the relationship can in fact be symbiotic. A significant number of public access clients come to me because they have been to see a solicitor, who has suggested that they instead consider coming to me directly as it would be more cost effective. Likewise, I have referred a number of prospective clients to solicitors where I have felt that it was in the best interests of the client to instruct in the traditional manner. The solicitor is then at liberty to instruct me, or anyone else, in the ordinary way. Managed and promoted appropriately, public access should not give rise to any hostility from traditional sources of work.

Work generation

Public access work certainly has a place in my practice, alongside traditional instructions from solicitors. Public access clients may be a little more demanding in terms of their expectations, but these can be appropriately managed and are more than compensated for by having a fixed fee paid in advance. The scheme is not perfect, and the BSB is currently considering various reforms which may or may not alter its attractiveness. Issues can presently arise from the prohibition on holding client money and on conducting litigation, as well as, in the case of consumers, complying with the Consumer Contracts Regulations 2013, amongst other things. However, properly understood and managed, public access is a valuable additional method of work generation in an increasingly competitive legal environment, which ever greater numbers of barristers are realising. 

PERSPECTIVE: A GOOD FIT FOR YOU?

  • Direct access work can be both challenging and rewarding so it is important to understand the realities of taking on and running cases before dedicating your practice to it. Very often you will be dealing with clients who have little to no understanding of the legal system or how proceedings and hearings unfold. For cases to run smoothly, you should expect to outline the procedures to the lay client, including how best to furnish you – their barrister – with the required information to best present their case. Dealing with this very early on can help to prevent ‘drip-feeding’ of documents and case history as the matter progresses, ultimately saving time, frustration and difficulties at court.
  • The positive outcome of this process is that you will have a full understanding of both case and client from the very outset; but, of course, you will very much need to be a ‘people person’ to make it work. This is particularly true of the family cases run on a direct access basis, where emotions are running high and everything the client holds dear is at stake and riding on your shoulders. For the client, the cost savings of coming to you directly will usually mean that there is scope for very reasonable fees, yet still saving the client money overall, and in all cases we ensure that fees are fully paid up front and before any work is done. For the barrister, you can be assured that you are paid before stepping into court or embarking on a piece of written work or a conference.
  • Our foremost recommendation for managing direct access work is to put a robust system in place to organise client care, billing, documents and diaries. At ShenSmith Barristers, for example, we help clients to understand the process of coming to a barrister directly, negotiate fees and ascertain affordability before bringing client and barrister together. Thereafter, we vary our involvement with each barrister dependent upon his or her preferred style of working.

Daniel ShenSmith, Co-Founder and Director, ShenSmith Barristers

PERSPECTIVE: GREAT FOR NEW-AGE BARRISTERS

  • Public access has more positives than negatives, in my view. Many barristers steer clear of public access because they prefer to have the solicitor acting as a filter between them and the lay client. Having trained as a solicitor and solicitor-advocate, I’m accustomed to meeting clients and leading the case from a base level. Some solicitors rely on the support of counsel in the same way as a lay client would. So if handled effectively, public access can yield fruit.
  • As being public access qualified allows me to manage a case and assist the client directly, it can be difficult when your client finds it hard to do any administration for themselves. However, there are ways and means around this if you manage their expectations. You also have the choice of deciding which cases to take on under the direct access scheme, ie which you feel able to conduct. There is a further extension whereby barristers can conduct litigation. Many barristers have mixed thoughts about this and feel they are more exposed to numerous issues. It certainly requires meticulous management of a case.
  • Depending on your practice area, and if clients are able to take care of their own case administration, public access is a great way to work for the new-age barrister. One of the main benefits is not having to wait to be paid through solicitors. Moreover, in this competitive world of legal services, it is a great way for barristers to offer their specialism directly to the client for a more competitive fee.

Haresh Sood, Derwent Chambers and a member of the Counsel Editorial Board

PERSPECTIVE: CLIENT DYNAMICS AND CASE HIGHLIGHTS

  • I completed the public access training in 2008. Since then I have undertaken several cases a year – a mix of commercial dispute resolution and crime work. The key to direct access work is understanding the dynamics are different, you are working directly with clients – that is not to be taken for granted, you quickly learn only to take cases well within your experience and expertise.
  • Direct access work presents challenges. You are not their solicitor for one and there are aspects only they can do. There is no buffer between you and client so it becomes a team effort and quite a close relationship. Clients like the direct contact. I think they find it empowering and the relative informality of the relationship gives them confidence when they realise how easy it is, and that barristers are actually well equipped to help them get good outcomes.
  • A highlight for me was a case in the High Court where I worked with a another barrister from chambers. We were jointly instructed by the client to work together under direct access in a huge case regarding ownership in a digital TV company which was based on the other side of the world. It was high pressure, we shared the work, we shared the advocacy, we won the trial – and we recovered our costs. I have yet to beat that one in terms of enjoyment, challenges and the delight/relief at the outcome. This experience gave me the confidence to do some international arbitration work under direct access and coordinating litigation in Paris, USA and Nevis & St Kitts.

Darren Snow is a member of Charter Chambers in London

PERSPECTIVE: EMPATHY + ENFORCEMENT

  • Direct access work has made a very positive contribution to my practice and I would encourage other members of the Bar to consider it. A barrister in a traditional family practice, I began to undertake direct access work almost from its inception. In my experience, what has changed over time is that the public are increasingly making a positive choice to instruct a barrister at an early stage of proceedings, so there are fewer litigants in person who instruct barristers as a last resort. Of course, it is rare to be given a properly prepared set of papers and direct access clients need a lot of extra assistance, but that is reflected in the fees that can be charged which are often still much lower than the fees they would incur instructing a solicitor.
  • A quick courtesy call to a potential client helps both the client to assess whether the barrister they seek to instruct is right for them and you as a barrister to decide whether the matter is indeed suitable for direct access.
  • In my view, the skills needed are two-fold. Firstly, you need to be able to exercise empathy and at the same time are able to enforce boundaries. At the family Bar these are skills are routinely utilised, but it is an altogether different experience when you don’t have the benefit of a professional client preparing the paperwork and advising the lay client as to their expectations.

Soraya Pascoe, Mansfield 1 Gray’s Inn Square Chambers, direct access instructed via ShenSmith Barristers

 

Category: 
Issue: 
Author details: 
Chris Bryden

Chris Bryden, barrister, 4 King's Bench Walk