The birth of public access
In 2004, the same year that the Clementi Report recommended that new business structures be permitted (with the aim of creating greater competition and increased choice for the public), the old prohibition on a member of the public instructing a barrister without the intervention of a solicitor ceased to exist. Public Access (“PA”) was born.
Because of the special care that has to be taken in dealing with litigants in person, barristers are required first to take a PA training course. For the first few years, only about 300 annually undertook this.
On 1 April 2010 the PA scheme was opened up to criminal, family and immigration work. This followed the BSB’s 2009 report on its consultation paper The Structure of the Self-Employed Bar which assessed the effectiveness of arrangements for PA to date and concluded:
“All sources of information suggest that the public access scheme is working very well. The lack of recorded complaints, together with the comments from practitioners and lay clients, suggests that the scheme has not given rise to either inappropriate conduct or poor-quality work by barristers. Indeed, most negative criticism was directed against the limitations of the scheme, which were often regarded as illogical and unfairly limiting to the Bar.”
From that time, and probably because of this latest development, the numbers of those undertaking the training course escalated: 1,222 in 2010; and 1,141 so far in 2011. Over 4,000 have now taken the course, and nearly 3,000 are registered on the Bar Council database. In other words, nearly one-third of the self-employed Bar is now qualified to accept PA work.
Relaxation of the Code of Conduct
In the meantime there has been a major relaxation of the Code in respect of the range of work that a barrister may undertake. We can now advise on all aspects of litigation and draft all necessary documents so long as the client signs them all and issues any proceedings or applications. We can also conduct correspondence subject to the terms of r 410A.1.
In May of this year, the BSB published its Regulating Entities Consultation Report, in which it stated its intention to proceed to establish a regime for regulating entities and to permit self-employed barristers and BSB regulated entities to conduct litigation (provided that they apply for, and meet the criteria for, an extension to their practising certificates or authorisation). The details are yet to be worked out but there will be a further consultation in the autumn with a view to the delivery of new rules by early 2013.
No need for alarm
There is no need, however, for members of the Bar to feel alarmed that this represents a step closer to fusion.
No barrister will be required to provide litigation services. It is anticipated that many barristers in the largest sets in the major cities will not undertake PA work and/or will not personally conduct any aspect of litigation.
The intention is to ensure that members of the public will be able to access the specialist advocacy services that only the Bar can offer across the country, including the remote parts of, for example, Cornwall, where publicly funded legal services are becoming more and more inaccessible. Those who practise regularly in PA work have found that, at times, it has been a major hindrance and a source of confusion to the client that the barrister has not been able to take what has been perceived by the client as a small step in the conduct of the case. Even though non-publicly funded solicitors are available, it is prohibitively expensive for a growing tranche of society to fund two legal professionals, rather than one. Better the public choose the specialist service that only the Bar can offer than continue to instruct solicitors because the Bar cannot take what to the client seems like a simple step in the legal process.
The Access to the Bar Committee (“ABC”) was consulted by the BSB on this proposal to allow the Bar to conduct litigation and expressed the view that the detailed rules should provide that a barrister who carries out legal activities for lay clients shall practise principally in the provision of oral or written advocacy, drafting or provision of specialist legal advice. The conduct of litigation in all its forms must be ancillary to such a practice. That is the emphasis that we will continue to promote in the forthcoming consultation.
The BSB also proposes that regulated entities and the self-employed Bar will not be allowed to hold client money but that the Bar Council will, if feasible, facilitate and regulate a central custodian service for the Bar and for BSB regulated entities (to be provided as a business service by a third party). Discussions about the detail are in hand at the time of writing.
Another challenge for the ABC is to promote the provision of information to the public about the specialist services that only the Bar can offer and the benefits of going directly to the Bar for those services. That is one of the two main issues in our current deliberations.
The other is the difficulty presented by r 3(1), which was inserted into annex F2 of the Code of Conduct with effect from April 2010. This states that:
“A barrister may not accept direct instructions from or on behalf of a lay client in or in connection with any matter or proceedings in which it is likely that the lay client would be eligible for public funding.”
The BSB has recently confirmed that this should be interpreted literally; that is, a client who does not wish to take up public funding, for whatever reason, is disabled from instructing a barrister on a PA basis by reason of bare eligibility for public funding.
The ABC and other Bar Council officers and committees have made representations to the BSB about this, seeking a relaxation of the literal application. This is on the basis that it limits client choice and client access and disables the Bar from competing fairly with solicitors who can represent clients who are eligible for public funding, even if they decide not to take it up.
We are hopeful that the BSB will respond positively to these representations.
Those at the Bar who have not yet undertaken the PA training course should be captured by the momentum that has been generated by the April 2010 changes.
Please do join in this positive extension to the ability of the Bar to compete in the 21st Century legal service market place and to client choice and access to the very best of legal services: the Bar.
Susan Jacklin QC
Chair of the Access to the Bar Committee