Direct public access – a chance for barristers and solicitors to work together, not against each other

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With more and more barristers capable of serving the public directly, it may seem like public access is only going to lead to greater competition with solicitors. But, argues senior clerk Scott Baldwin, there is actually a business opportunity here that could benefit both sides

The Bar: many solicitors are amused at the thought of barristers dealing directly with lay clients

The potential competition from big high street brands and the decimation of legal aid is putting many firms of solicitors under an enormous amount of strain. At the same time the increase in direct public access to the Bar would appear to be another source of concern. Is the Bar going head-to-head with solicitors in direct competition for work?

Some solicitors are highly amused at the prospect of barristers dealing directly with lay clients and specifically the amount of time spent on communication and managing expectations. For others, the lower hourly rates that barristers can offer at a time of economic hardship is a genuine concern.

It is not an issue that is likely to go away, at the end of 2011 over 4,000 barristers had completed the necessary training, there is the strong possibility that in the not too distant future, all chambers will offer some form of public access.

At first glance this seems to present a bleak future for co-operation between the two professions as public access drives a competitive wedge between them. It is important, however, to look more closely at the regulations that govern public access to properly assess the situation.

What services can a barrister offer?

In simple terms, barristers can offer the same services they currently offer: advocacy, negotiation and advice. The big change is that the lay client does not now need to instruct a solicitor in order to obtain access to a barrister.

All the services that barristers can offer under public access come with a caveat or two. A barrister can, for example, take a witness statement; however, that same barrister could not appear in court on that case if there is a reasonable possibility that the collection of the statement may be challenged in court. The barrister would also be prohibited from serving that witness statement on the other side or the court.

What services can’t a barrister offer?

The Bar Standards Board (BSB) guidance states: “Barristers in self-employed practice are not authorised litigators… It is therefore crucial that barristers ensure that they do not conduct litigation.”

Thus a barrister cannot: issue proceedings, applications or notices of appeal; acknowledge service; sign a statement of truth on behalf of the client; receive or handle client money, including paying court fees; instruct an expert witness; lodge bundles; or find witnesses

This list is not exhaustive and there are other examples of work that a public access barrister cannot undertake. The guidance also sets out in what circumstances a barrister should refuse instructions directly from a lay client and recommend the use of a solicitor.

Most of the reasons for declining instructions revolve around the complexity of the case and the client’s ability to perform the various tasks required to progress the case. Both factors contribute to the suitability of accepting direct instructions. If a client had what appeared to be a simple case but required the services of an interpreter and thus found it difficult to communicate with the court or the other parties, it would not be suitable for a barrister to accept direct instructions.

The overriding message of the guidance is that a barrister must be certain that in accepting direct instructions the needs of the client and the administration of justice are both being properly served. It is also currently prohibited for barristers to accept instructions where public funding would be available if the client instructed solicitors. This is true even if the client chooses not to accept an offer of public funding which would be possible if the client had to pay a substantial contribution. The BSB is currently considering whether to abolish this rule.

The future of the legal services market

Most of the expert commentary about the impact of the changes to the legal services market point towards a shift in how services are purchased. Clients will become customers who will buy the service they need as and when they need them. Fixed-fee services will become the norm as customers demand the same sort of pricing they receive in their other non-legal transactions.

There is little doubt that the larger providers that are emerging, such as Riverview Law, will offer fixed fees as they look to establish themselves in the market. Riverview has also created its own virtual barristers’ chambers, which promotes direct public access to their barristers, including several QCs. Co-operative Legal Services plans to offer fixed fees in family cases. Clearly this is not a flash in the pan.

Clients are more likely to try ‘DIY law’, where they buy expert advice and assistance at key stages but deal with the actual running of their own cases. The DIY analogy is quite a useful one. The vast majority of people wouldn’t attempt an entire property renovation on their own and would doubtless use plumbers, electricians and other tradesmen for key jobs. The potential savings of buying raw materials, handling the unskilled labour themselves or less difficult tasks such as painting and decorating would be an attractive proposition.

The same is true of legal services and anecdotally I have heard of an increase in lay clients buying just what they feel they need from solicitors.

The hybrid law firm

Looking again at the Riverview Law model, clients are presented with a collaborative approach to the provision of services with a variety of cost-effective options available. The solicitors and barristers involved can offer a greater range of services than either could on their own. The client gets to buy which services they want, when they want, at a clear fixed price.

If a client wants a traditional service where a solicitor manages every aspect of the case from start to finish and instructs a barrister as and when it is deemed necessary, then Riverview Law can provide that service. If a client wants a bespoke service where the solicitor and barrister are used for key components of the case with which the client requires assistance, then traditional law firms cannot currently provide that service.

The CEO of Riverview Law, Karl Chapman, was one of the speakers at last month’s Legal Futures conference and he made a key point. Whilst what Riverview Law is doing is innovative and different to everyone else, it does not have to be unique and other law firms can adopt their model. Barristers and solicitors could work together, without the fusion of the codes, to provide clients with the best possible service.

I don’t doubt that other law firms will work more closely with barristers and create similar types of hybrid service to that offered by Riverview Law.

Barristers referring work to solicitors

If we assume that the market will develop in this way and clients pick and choose what they want and when they want it, direct public access seems to fit the model. What is particularly interesting is what happens when a barrister cannot provide the service required or else considers that the lay client needs a solicitor’s services. A barrister can then refer the client to a solicitor.

Direct public access will create greater competition between solicitors and barristers but importantly it could also allow greater collaboration. Take, for example, a lay client instructed a barrister to deal with a hearing but where the case requires work that the barrister is prohibited from doing and the client is not capable of dealing with. The barrister could refer the client to a solicitor to assist.

The rules regarding a barrister referring a client to a solicitor are simple:

• The barrister has reasonable grounds to believe that the solicitor or professional client is competent to do the work; and
• The barrister receives no payment for the referral; and
• The solicitor is free to instruct another barrister.

A client can also instruct a barrister directly even if they already retain the services of a solicitor. This could be very useful where a client is of limited means and the solicitor is unavailable to deal with the work. In such cases the solicitor could recommend that the client seeks the services of a public access barrister solely to deal with a hearing and thus save the client money.

Public access seems to be a sensible proposition, but this is on the basis that lay clients actually understand it all. There will undoubtedly be instances where a lay client will be extremely annoyed at the barrister referring the case onto a solicitor and incurring more costs. The reasons why a barrister can’t act without a solicitor will not always be clear and when the issue is the client’s capacity to deal with the management of case, it may well be difficult to communicate.

Where a barrister has previously provided a service and the client has already paid for that service, the client may feel that they are being billed twice and that the initial service was therefore not worth paying for. Clients often need a great deal of reassurance and in family law many solicitors perform the role of confidant and general adviser as well as providing legal expertise.

Barristers have no support team to deal with such matters; clerks generally have no extra capacity to deal with lay client’s queries. Each barrister is self-employed and so a query from a client cannot be referred to another barrister if the instructed barrister is not available. In a solicitors’ office, another fee-earner could pick up the file and deal with it.

In short, public access to the Bar need not cause feelings of resentment between solicitors and barristers. It is not the merging of the two halves of legal practice and it isn’t the answer to every problem. It gives lay clients more choice but it also allows providers of legal services more choice and the opportunity for barristers to refer work to solicitors.

There are many pitfalls for those who chose to undertake direct public access. Most importantly, if the legal market is changing, then those who offer their services to that market need to be aware of the opportunities these changes may bring.

Public access may well provide a different stream of revenue for solicitors with the work coming from a hitherto unlikely source – the Bar.

Scott Baldwin is senior clerk at St Mary’s Chambers in Nottingham, the only specialist family law set outside of London