Dr Davies: Cab-rank rule an “essential safeguard”
Solicitors have been accused of using “bullying” tactics to impose their own contractual terms on barristers.
The allegations, referred to in papers for last month’s Bar Standards Board (BSB) board meeting, claim that solicitors are “generally seeking to impose their own terms”.
The BSB was told that “certain solicitors may be using ‘bullying’ tactics to require barristers to accept terms that are contrary to their regulatory obligations”.
The allegations follow a row between the Bar Council and Legal Services Board (LSB) over the issue of contractual terms and changes to the cab-rank rule.
The BSB said that information it had received suggested that many chambers had “not routinely been entering into contracts” when accepting instructions from solicitors.
The regulator said that while nothing obliged barristers, apart from in the context of the cab rank rule, to accept instructions on a contractual basis, there was a risk that by failing to do so, they may be failing in their obligations to confirm in writing acceptance of instructions and the terms on which they are acting.
The BSB’s standard contractual terms, and associated amendment of the cab-rank rule, were introduced in early 2013.
The LSB later launched a formal investigation into the Bar Council’s involvement in the rule change, which was resolved by the Bar Council agreeing to give a number of undertakings.
One of them required the BSB to review the question of whether the standard contractual terms should be removed from its regulatory arrangements.
At last month’s board meeting, the BSB agreed to consider this, but before making a final decision, to launch a call for evidence on the issue in September. This would close at the end of the year, allowing the BSB to make a decision by March 2015 and apply to the LSB for a rule change the following month.
In a letter this week to Chris Kenny, chief executive of LSB, Dr Vanessa Davies, director of the BSB, said: “It is clear that the move to a contractual basis of instruction has been a significant change for many in the profession, and chambers’ systems and practices have taken some time to adjust.
“Whilst the BSB has collected some evidence about the types of contract that barristers are entering into, the board felt that further evidence gathering was needed before coming to any firm decisions, particularly in relation to the operation of the cab-rank rule.”
Dr Davies emphasised that the board continued to be committed to the cab rank rule as an “essential safeguard for the public”.
She concluded: “The board is open-minded as to the role that the standard terms should play in giving effect to that rule, noting that the arrangements must be fair both to those seeking to avail themselves of the cab-rank rule in order to get legal representation, and the barristers who are compelled to act because of it.”
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