What not how

The new BSB Handbook is less prescriptive, focusing more on what the outcome of a rule should be, rather than trying to define how a barrister should act in every situation. Ewen Macleod explains

The current Code of Conduct, which defines how barristers practise, was first created by the Bar Council almost a decade ago. While many rule changes have been implemented over the course of the last 10 years, its basic underpinning framework remained the same.


When the Bar Standards Board (BSB) was formed in 2006, it started the process of reviewing the regulation of barristers in full. As a then newly established regulator, the BSB needed to ascertain the extent to which the existing rules properly protected the public, and what needed to change. The Legal Services Act 2007 – which created a new regulatory structure for legal services and allowed, for the first time, different types of lawyer and non-lawyer to form businesses together – provided an additional prompt for reviewing the rules.

The revised code now forms part 2 of the new BSB Handbook, which brings together all the BSB’s regulations – for example, those relating to enforcement and the Bar Training Regulations – into one publication. Superfluous rules have been stripped away or modernised. Its approach is less prescriptive, with more focus and guidance on what the outcome of a rule should be, rather than attempting to define how a barrister should act in every situation.

The Legal Services Board (LSB) has challenged the BSB to be more focused in its regulation and the new Handbook is the BSB’s response. The BSB redrafted rules and guidance and included a description of desired outcomes in the code itself, so the public interest factors that barristers should consider when applying the rules are always clear.

The public interest focus of the Handbook is perhaps clearest in changes to rules around litigation. For the first time, self-employed barristers will be allowed to apply for an extension to their practising certificate to allow them to conduct litigation – subject to their general duty only to undertake activities that are within their professional competence.

Self-employed barristers who apply for a litigation extension will be required to complete a self-assessment questionnaire to apply for this right. Consideration will be given to factors such as knowledge and experience of civil and/or criminal litigation procedure and whether they have done the public access course.

This is good news for consumers approaching public access barristers. Previously, should a public access case go to court, the client would have to act as a self-represented litigant and conduct certain administrative tasks themselves if they are not going through a solicitor. Under the rules set out in the new Handbook, the client’s barrister will now be able to undertake litigation themselves – provided they have been authorised to do so. Lay clients will, therefore, have the option of purchasing support with particular aspects of their case, should they so wish, in addition to accessing a one stop shop for litigation and advocacy.

The new Handbook includes some practical changes, too. Now barristers will be able to pool together risks and resources, as rules preventing self-employed barristers from sharing premises and forming associations with non-barristers are removed (subject to safeguards to ensure that client’s interests are protected).

The “cab rank” rule remains and it has been extended to apply to instructions for work in England and Wales coming from lawyers in Scotland, Northern Ireland and European Economic Area member states.

Further changes to international practising rules include replacing the definition of “international work” with three new definitions of “foreign work”, “foreign clients” and “foreign lawyers.” The new definitions will allow the Handbook to be applied to foreign work in a more consistent and logical way than is currently achieved by the existing code. The public access rules will now apply to foreign work.

Currently, the cab rank rule does not apply to public access cases, but once the new Handbook is in place we will review whether this exception should remain. For the time being, we have clarified that the cab rank rule applies in relation to non-advocacy work.

There are a number of deliberate omissions from the new Handbook, which were no longer thought necessary, these include:

  • the requirement to have a professional client present when appearing in court;
  • detailed rules on fees;
  • and detailed rules on advertising.

 

To underpin the new Handbook, there will be new approaches to both enforcement and supervision. The BSB recently consulted on the new supervision strategy. The proposals mainly focus at the chambers or entity level, although supervision will also be available to address non-compliance by individual barristers, where appropriate. For chambers and entities, we are proposing on-going assessment of the likelihood and potential impact of them not complying with their regulatory requirements.

An enforcement strategy has been developed and this will be supported by a set of new enforcement policies that will also be applicable from January 2014. These include extending administrative sanctions to cover breaches of any rule with the fine limit being raised to £1,000. Where administrative sanctions are not considered appropriate, the breach will be treated as professional misconduct and, where it is in the public interest to do so, disciplinary action will be pursued.

Through developing a risk-based approach to supervision, the BSB will be better placed to work with the profession to prevent non-compliance from materialising in the first place, or to avoid a recurrence of less serious non-compliance. This will help the BSB to ensure that enforcement action is reserved for the most serious cases of non-compliance, which could have considerable consequences for the client and the public interest.

Individual responsibility is at the heart of the new regulatory regime. Responsibility for ensuring compliance with the new Handbook will lie with the individual barristers and the chambers and entities in which they work. A further change will therefore be the introduction of a duty to report – by oneself or others – serious misconduct to the BSB. While this is a change for the Bar, such duties are already established in other regulatory regimes and are important for public protection and confidence in the profession.

Co-operating with the regulator will be enshrined in the core duties. All chambers will be expected to appoint a member responsible for liaising with the BSB, who will help streamline communication and the flow of information between the chambers and the regulator. This replaces the current duty on heads of chambers. However, all barristers are under a duty to ensure – as far as reasonable, given their role within chambers – that their chambers are administered competently.

In parallel with launching the new code of conduct for individual barristers, the new Handbook will also see the launch of the BSB’s new regulatory framework for entities, once the necessary approvals from the LSB have been obtained for the BSB to extend its regulation to entities. As with individuals, entities are required under the Legal Services Act 2007 to be authorised before they can undertake reserved legal activities. At present, entities wishing to form a partnership or company need to be regulated by another approved regulator like the Solicitors Regulation Authority. The BSB will seek approval of rules which allow it to regulate entities owned and managed by different types of lawyer and designation as a licensing authority for alternative business structures – ie, entities with some non-lawyer ownership or management. Becoming a regulator of entities will further enable barristers to develop new business models, which will leave them better placed to respond to changing demands from and expectations of clients.

From September, a series of roadshows, podcasts and webinars will be available to help the Bar get to grips with new Code. Further information will be available from www.barstandardsboard.org.uk/handbook.

The legal services landscape is undergoing a period of dramatic and rapid change. The public needs to be sure that, despite such change, the standards applied to the advocates on whom they will rely are no less rigorous and that access to justice is safeguarded. The new Handbook will not only offer greater clarity to barristers but it will also enable consumers to understand better what they can expect from barristers in these changing times.

The new Handbook will be enforceable as of January 2014. Download from www.barstandardsboard.org.uk/handbook.

Ewen Macleod is head of professional practice at the Bar Standards Board.

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