Deech: chambers to be invited to maintain records of difficulties presented by signposting obligation
Four out of ten barristers’ chambers have flouted a regulatory requirement to notify lay clients of their rights to complain about poor service, amid a continuing furore over difficulties in complying with the scheme, it has emerged.
Meanwhile, the Solicitors Regulation Authority (SRA) has confirmed that solicitors are under no obligation to assist barristers in contacting clients directly in order to meet their obligations.
Results from the Bar Standards Board’s (BSB) chambers monitoring survey, completed by every chamber and sole practitioner at the end of last year, showed that around 40% of chambers were failing to comply with ‘complaints signposting’ requirements, which came into force on 6 October.
After months of controversy and objections from barristers’ representatives, the Legal Services Board (LSB) has clarified to the BSB the circumstance in which barristers can delay telling lay clients of their rights. After first engagement, when they have no client contact details, barristers can wait to provide information at a first meeting. If no meeting is anticipated, they can ask solicitors to pass on the information, but only as a last resort.
At its monthly meeting in London this week, the BSB’s board approved a revised guidance, drafted in light of clarifications by the LSB. Board members made it clear they were agreeing to the policy only at the LSB’s insistence.
In a paper submitted to the board, drawn up by standards committee chairman Charles Hollander QC and the BSB’s head of quality, Oliver Hanmer, the BSB admitted that “the high levels of non-compliance [shown in the chambers monitoring returns] are not currently being actively pursued for enforcement action… in recognition of the legitimate concerns expressed by the profession about the impracticality of complying”.
However, the paper added: “The board cannot allow non-compliance to persist indefinitely.” If the BSB drops its attempts to amend the policy, “it will need to begin to take a harder line on non-compliance” or risk enforcement action by the LSB, he said.
Baroness Ruth Deech, the BSB’s chairman, said chambers would be invited to maintain records of any difficulties presented by the signposting obligation, as the basis of research that could be presented to the LSB in a year’s time if problems persisted.
A key concern expressed at the meeting was that in order to reach lay clients sooner rather than later – the LSB’s stated objective – the co-operation of solicitors is required. Mr Hollander said the LSB was “absolutely firm and will not be moved” that complying with the complaints information obligation through solicitors “is a last, not a first port of call”.
When asked whether he believed the BSB should press the LSB to be prescriptive on whether barristers must seek to contact lay clients directly, Mr Hollander said that, at least initially, “it is better left opaque”. The LSB had made it clear that, so long as chambers do their best in good faith to comply, and are monitored by the BSB, it would be “sympathetic” to difficulties.
An SRA spokesman confirmed to Legal Futures that solicitors are “under no obligation” to provide barristers with client contact information. In fact, under their “duty of confidentiality”, they would have to seek the client’s consent to release it.
The board was told that one chambers had sought to obtain client address details from solicitors in around 100 cases, in order to make direct contact, and had been supplied with just six.
One barrister member of the board said “You’re not going to get the solicitors giving you the information which allows you to write direct to the lay client”.
As an inducement to compliance, in January the LSB sought to portray the requirement to notify lay clients as a “marketing opportunity” for barristers. The BSB has drawn up a sample client information leaflet which reflects this possibility.
The suspicion that solicitors will be reluctant to hand over client contact details or assist barristers in marketing themselves to clients – in a era when direct access to barristers by members of the public is growing – may be fuelled by the content of the BSB’s sample client information leaflet. While it makes clear to the lay client that contact should be made via their solicitor, it also provides details of the chambers’ website.
I wish that the LSB etc would listen to consultation responses. Most of my firm’s clients would be turned away by the LeO even if they did complain (because they are outside the LeO’s jurisdiction).
I have no intention of telling those clients that they have a right to do something they haven’t got – and that includes telling them about a non-existent right to complain about Counsel.
The article highlights an issue that also troubles me – if the bar is to really go all out for direct competition, then fine but is there then any justification for continuing the antique rules on payment of fees (and striking off if a solicitor doesn’t)?