We are standing at a pivotal moment in history for the independent Bar. The last great evolution of working practice for the Bar took place in the late 19th century when the Bar became firmly established as a referral profession following the Judicature Acts. We are now at a point in time when the tectonic plates of the legal landscape are on the move once more. Not so very long ago, many barristers would neither have contemplated, nor even countenanced the prospect of public access work becoming a material part of their practice. Understandably we didn’t wish to compete with our instructing solicitors for work, we were not set up to market our services to the public and we were reticent about taking direct instructions from our lay clients without the filter of a solicitor.
Post-LASPO, the Bar has had to respond to the increasing number of litigants in person who do not have sufficient resources to fund both solicitor and counsel and who would go unrepresented were it not for the availability of public access. The Bar has also had to react to the growth in the numbers of litigants who choose to take advantage of the cost benefits of public access. We may not have sought these changes to the fundamental nature of our practice but we are living in times of change and we need to adapt.
Individually and collectively, one of the challenges for the Bar is to devise a cost-effective structure for the provision of public access services which enables us to meet efficiently the ever-increasing demand that we are facing.
Unaffordable or excessively expensive public access fees can be explained in part by the absence of appropriate litigation support. If instructed on a public access basis, a barrister will charge for the provision of services that one expects a barrister to provide normally at a barrister’s hourly rate. However in many cases there is an inevitable risk that a barrister will also be asked to perform services that are not traditionally performed by a barrister with the consequence that a barrister ends up charging for the provision of paralegal or junior solicitor services at a barrister’s hourly rate. The cost-inefficiency to a lay client is obvious. At the heart of this problem is the self-employed status of the barrister and the understandable reticence of chambers to invest extensive fixed costs in the employment of in-house paralegal and junior solicitor support.
Of course not all public access instructions are borne out of the withdrawal of state funding. There are increasing numbers of litigants in person who actively choose to instruct the Bar directly in order to achieve a significant discount from the binary cost of instructing both solicitor and counsel. Greater efficiency and costs savings for “commercial” litigants in person could be achieved if barristers did not have to charge their normal hourly rates for tasks more efficiently performed by paralegals or junior solicitors. Whilst unaffordability of public access barristers is not an issue for these clients, the unnecessary exposure to avoidable legal fees will be.
Outsourcing support services
How then can the Bar provide economically efficient and more affordable public access services? The answer to the question posed is to provide public access barristers with outsourced support services that have traditionally been provided by firms of instructing solicitors, but at a fraction of an instructing solicitor’s cost. The litigant in person contracts with the provider of the support services and the barrister is provided with the support needed to supply all the benefits of public access at an economic price.
Outsourcing support services not only enables a public access barrister to provide cost efficient services; it also enables the barrister to take on work that he or she may not previously have been able to accept. Public access instructions cannot be accepted if a barrister forms the view that it is either in the best interests of the client or in the interests of justice for the client to instruct a solicitor: rC120.3, BSB Handbook.
When making best interest assessments the barrister will focus on the tasks that his or her public access client will be required to perform. If the client is unable to perform the tasks, or the case is too complex or voluminous for them to perform those tasks, then the barrister would ordinarily be required to refuse to act. But if support services were available so that tasks too complicated for the client could be outsourced, then there is no reason in theory for the barrister to refuse to act. Information about issuing proceedings could be provided, witness statements taken, evidence collected, documents managed, trial bundles produced and/or photocopied and assistance provided during longer hearings.
If a range of support services traditionally supplied by a solicitor were available to assist a public access barrister but at a fraction of the cost, the barrister could take on more public access work and the client would benefit from cost efficient legal services. With these aims in mind, along with a solicitor and a senior HR executive, I set up PASSlegal.
Contributor Simon Sugar is a practising barrister and a director and shareholder in PASSlegal