The same... but different

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Andrew Granville Stafford considers the attractions, the pitfalls and the mechanics of public access work

Among my first public access clients were an African prince, a 70s prog rock star and the former managing clerk of a large solicitor’s firm whose preferred method of payment was an envelope containing £50 notes. 


I was hooked. This was 2006 and, although public access had already been around for two years, take up amongst barristers was still low. Of course, in those days, criminal, family and immigration work were all excluded. But most civil barristers were still sceptical if not positively anti. I remember one member of chambers asking me why on earth I would want to do it. I pointed out that in the first three days of that particular week I had done cases in the High Court, the county court and the Court of Appeal. All were public access instructions and all the fees were already in my account. He got the picture.

I joined the Public Access Bar Association when Marc Beaumont set it up in 2007 and two years ago I became its Chairman. In January 2011 Chris Bryden, a fellow member of chambers, and I were approved by the Bar Standards Board (BSB) to provide public access training as Barristers Direct. We have noticed over the years we have been doing the training that barristers now come on the courses with a greater level of starting knowledge, picked up from colleagues in chambers already doing this type of work. No longer do we get asked whether we can actually speak to our client on the ‘phone or is it really true that we can insist on payment up front. Nowadays it is more likely to be whether we would recommend BARCO (see p16) and whether you can accept intermediary instructions from a paralegal.

The work we do in a public access case is no different from what we do when instructed by a solicitor. We still go to court; we still draft documents and we still give advice. It is just that the way we do it is slightly different. In my view, those who embrace the differences are more likely to be successful. Don’t expect a beautifully presented set of instructions. Don’t necessarily even expect to get all the relevant documents. Do expect that a degree of handholding will be required. Despite these hurdles, your client still needs help from someone. You can provide that, and probably for significantly less money than he would have paid a solicitor.

One of the things we emphasise in our courses is the importance of a good client care letter. It is your contract with the client. Many barristers simply use the BSB’s model letter without giving the matter more thought. In my view, the model letter is deficient in the way it deals with terms for payment, the Consumer Contract Regulations, alternative (eg legal expenses insurance “LEI”) funding and return of client documents. Provided the letter covers the regulatory requirements set out in rule C125 of the Public Access Rules (see box, right), we are allowed to add sections and make sections “more robust” (in the words of the Bar Council’s Access to the Bar (ABC) first quarterly newsletter).

Until 2013 barristers under three years’ call were not allowed to do public access work. That prohibition has now been removed and the junior Bar make up a significant proportion of those that we train. They rightly see direct instruction as a way to build up their practice. As Alistair MacDonald QC said in his inaugural address as Chairman of the Bar, why would a litigant want to engage the services of a paid McKenzie Friend, some of whom charge £100 per hour, when they could get a fully qualified and regulated junior tenant for a similar rate?

In his address, Alistair MacDonald said he was mindful of concerns that some have about the effect on chambers’ solicitors. In my experience of teaching, this tends not to be an issue for those working in the larger legal centres, such as London, Birmingham and Leeds. However, in other smaller centres I have head of solicitors making veiled threats about not instructing barristers who take on public access clients. I do not think such threats need be taken seriously – soon there will be so many of us that have the public access qualification that they will be doing well to find a barrister who only accepts solicitor instructions. In any event, as one senior clerk told me, the answer is simple. “I tell them,” he said “that if they stop doing advocacy, we’ll stop doing public access.”

I also find that the attitude of solicitors to us varies depending on whether or not they are still in practice. I have been instructed on a number of occasions by solicitors who have ceased practising, not always through freedom of choice. Whilst it is undoubtedly true that some current solicitors are not keen on the scheme, former solicitors recognise it for what it is: a cost effective way of accessing good quality advice and representation.

Contributor Andrew Granville Stafford, 4 King’s Bench Walk

BSB public access rules: a summary

Before you can accept public access instructions as a self-employed barrister, you must:

  1. Hold a full practising certificate. If you have less than three years’ practising experience, you must have a public access “qualified person” readily available to you to provide guidance;
  2. Have undertaken and satisfactorily completed a BSB approved training course. If you were registered to undertake public access work prior to October 2013, you must also complete a top-up training course by 4 October 2015 or cease to undertake public access work. Details of such courses can be obtained from the BSB’s website;
  3. Notify the Bar Council’s Records Office of your intention to undertake such work; and
  4. Have insurance cover as required by the BSB Handbook. Bar Mutual Indemnity Fund cover satisfies this requirement.

When you accept public access instructions, you must notify your client in writing of:

  1. The work you have agreed to perform;
  2. The fact that you are not authorised to conduct litigation by the BSB (unless you are);
  3. What they can expect from you if you are prevented from completing the work by professional duties or conflicting professional obligations;
  4. The fees you propose to charge, and the basis on which your fees will be calculated;
  5. Your contact arrangements; and
  6. Information about your complaints procedure.

The full Public Access Rules are Rules C119 – C131 of the BSB Handbook. The BSB has also produced Public Access Guidance for Barristers and a model client care letter for public access work. These can be obtained at www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/publ....

 

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Andrew Granville Stafford

Andrew is Chairman of the Public Access Bar Association, a member of the Bar Council’s Direct Access Panel and a BSB approved public access trainer. He is leading a session at this year’s Annual Bar Conference on “The Pleasures and Pitfalls of Public Access”.