Bar Embraces Change

The Bar Standards Board, which regulates 14,000 barristers in England and Wales, gave its approval last night to fundamental changes in barristers’ working practices.

The board unanimously approved a proposal that would allow barristers to supply legal services in partnership with other types of lawyer (and up to 25% non-lawyers) as managers of what are known as legal disciplinary practices.

To the dismay of those who fear that the Bar will be damaged by reform, members took the view that standing still is not an option at a time of change in the legal profession. Equally, they were concerned not to run before they could walk.

Under proposals agreed last night, barristers will be permitted to practise in more than one capacity at the same time – for example, as both managers of legal disciplinary practices and as independent practitioners.

However, the board stopped short of supporting a proposal from an internal working group that would have allowed a barrister to own shares in a legal disciplinary practice other than the one in which he or she works. Board members foresaw potential conflicts of interest and the board intends to ban such investments once the necessary rules can be brought in.

At a good-natured meeting in London last night, the Bar Standards Board also decided that:

  • Barristers should be permitted in principle to form barrister-only partnerships – known as BoPs – pending the creation of an appropriate regulator for these entities.
  • Barristers should be permitted in principle to practise through other barrister-only companies and limited liability partnerships. However, further work is required to determine if the board should regulate these entities.
  • The cab-rank rule will apply to barrister-only partnerships, as well as to the self-employed Bar. The board considers that solicitor-advocates should be subject to the cab-rank rule and will be raising this issue with the Solicitors Regulation Authority.
  • The board should consult on whether to become an entity-regulator – a body that regulates entities rather than individuals. It will look at whether a modified cab-rank rule can be applied to barristers in legal disciplinary practices who do advocacy work.

Baroness Deech chaired the meeting with a brisk efficiency derived from decades of experience in running academic and public bodies. In a statement afterwards, she said:

The board’s decision today is of considerable significance for the future of legal services provision in England and Wales. It represents the culmination of more than two years’ careful consideration of the issues, guided by the over-riding concern to regulate in the public interest.

Our decisions on legal disciplinary practices reflect the need to develop and enhance the supply of legal services so as to best serve clients of the Bar and guarantee access to justice.

In relation to shareholding in legal disciplinary practices, we discourage this until we are confident that proper clarification and guidance is in place about conflicts.

In relation to dual practice, we hope to provide flexibility in the provision of barristers’ services to the benefit both of practitioners (particularly women seeking more flexible arrangements and the young bar starting out in practice) and consumers by offering them a variety of alternative modes of service-delivery.

In relation to barrister-only practices, we can see real benefits in such entities being able to better share risk; for example, such entities may be able to offer greater access to justice through a willingness to operate Conditional Fee Agreements (“no win, no fee”) where individual practitioners feel unable to bear the risk of doing so.

In deciding to apply the cab-rank rule to advocates in barrister-only entities and to seek to apply that rule to all advocates, the board wishes to preserve a unique attribute of the Bar, in the public interest, one the Lord Chief Justice has described as “essential to the administration of justice”.

Having made these decisions affecting the nature of the supply of legal services, it is now our intention to introduce them in a way which safeguards the independence, quality and ethical conduct of the Bar while also serving the best interest of consumers.

We trust that these changes are creative, flexible, permissive in the most positive sense, measured, in that they do not represent a free-for-all, but amount to a shot of adrenalin for those elements of the Bar that have been struggling in recent times, and, most importantly therefore, of benefit to the users of barristers’ services and for the legal services market as a whole. 

This has been a difficult undertaking.  We know that feelings and opinions are very strongly held on all sides of this debate.  As a responsible regulator we have balanced the views and come to conclusions, giving living effect to the regulatory objectives of the Legal Services Act and just as importantly, to the spirit they embody.  We will monitor progress carefully.

The reforms were welcomed by the Legal Services Board — the profession’s overarching regulator — as well as by the Bar Council, which represents barristers.

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