Wed, 01 Oct 2014
“The Times They Are A-Changing” wrote Bob Dylan in 1963. Is public access (PA) a reinvention of the wheel or an opportunity for all lawyers? The work that barristers can now do is utterly different from a decade ago. The growth of McKenzie friends shows the legal landscape has been affected by financial constrictions and widening consumer choice. Solicitors have higher rights of audience and employed barristers can be advocates. Professionals from both sides wonder whether there is still a real difference. The answer currently is that there remain significant differences though the edges are becoming blurred. This article will not examine those differences or likely future of the professions. Instead it offers an insight to how barristers, especially young barristers willing to embrace change, can help their future while continuing to work with solicitors.
PA started in 2004, though direct access to barristers through licensed individuals and organisations was around since 1989 and known as Licensed Access (LA), allowing professionals and approved organisations to instruct counsel directly. The significant changes with PA were the ability to instruct counsel to go to court and the client did not have to be approved or a professional. PA counsel has to be satisfied that the client can properly instruct and work without a solicitor involved and, if required, conduct any litigation. If not, counsel can recommend the help of a solicitor but cannot work directly. This remains an opportunity for counsel and solicitors to work in the traditional manner.
Only civil work was permitted until 2010 when criminal, immigration and family work were added. The Bar Standards Board (BSB) is likely to consult on merging PA and LA, leaving PA as the direct route to the Bar. Until October 2013, PA was not available to barristers under three years call. Becoming accredited should not be difficult for any barrister. Essentially the one-day course deals with money laundering regulations and the differences and additional requirements of PA work.
Over half the Bar is PA accredited. Barristers find working directly with clients allows a hands-on approach that benefits them advising and assisting clients who gain from closer communication and direct access to counsel, thereby reducing costs – a major attraction to clients. It improves the effectiveness and speed of obtaining advice and representation. This provides another opportunity for both professions. Many solicitors find clients cannot afford two lawyers. Instead, they recommend them to counsel directly to look after their legal needs and call on the solicitor for any particular help. This keeps clients satisfied, servicing their legal requirements economically while a firm retains a satisfied client in the longer term.
Clients praise the direct approach and practical knowledge of counsel, along with the lower cost of PA as a significant benefit. They like directly controlling costs and expenses since, in PA cases, the client remains a litigant in person (LIP). Counsel does not “conduct litigation”. However, since January 2014, barristers can obtain additional accreditation to conduct litigation. The uptake on conducting litigation has been limited and many of the barristers who now conduct litigation are former solicitors. Some think that whatever the benefits of PA, conducting litigation is unnecessary for the Bar, especially as solicitors’ firms already do this effectively.
Indeed barristers do not need to conduct litigation to do PA work. There are many reasons why conducting litigation is considered burdensome for barristers and the running of chambers. In contrast, the client in PA work remains responsible for conducting the litigation. The standard terms of engagement with counsel, as well as the published guidance, make clear that counsel is self-employed and may be unavailable at times due to other commitments. The BSB produce a model template for engaging PA counsel that can be adapted to suit individual cases. It is also possible to instruct counsel through an intermediary on a PA basis, likewise on a contractual footing. Just as solicitors now instruct counsel on a contractual basis, PA work is always done on contractual terms.
As PA counsel cannot hold money on account, clients pay in advance for identified work or agree to pay for work at a specific rate, such work only being released upon payment. For barristers starting out, this is the great financial attraction of PA work. It is even possible to be instructed on a CFA basis. There are also several escrow-type services including BARCO run by the Bar Council (BC) that allow clients to pay money into an account managed by a third party. Counsel can draw down fees as they are incurred, avoiding impermissibly handling client money “on account”.
The public have really taken to PA and are becoming increasingly aware of it, through word of mouth, the media and especially the Internet. Chambers’ websites now commonly have a specific PA area identifying barristers who do such work in chambers. The BC’s website maintains a list of accredited barristers that can be searched by location and specialisation. There are also websites offering to funnel enquiries from a LIP to a barrister who is a member of that site.
The most important ability a PA barrister needs is to maintain professionalism while managing clients’ expectations, remembering that counsel is probably the only person with legal training involved in the case. Clients vary enormously, from individuals with limited grasp of their legal problem through to sophisticated corporations and professionals fully aware of whatever issue they bring to counsel directly. The work can comprise letting clients down gently through to helping them prepare for and then appearing on their behalf before a tribunal or court including the Appellate courts. Letter writing and negotiations to resolve disputes including mediations are now commonly carried out directly by counsel.
It is impossible to predict if the Bar will fuse with the solicitors’ profession, but the core skills of barristers remain distinct from most solicitors. There will be cases needing the joint efforts of solicitors and barristers. There will always be wealthy clients who want solicitors and barristers to advise and act for them. However, with the enormous fall-off in work funded by civil legal aid, many LIPs are turning to PA counsel to assist them. In these straightened and cost conscious times, many individual and corporate clients have found that the Bar can provide a quickly accessible means of specialist advice and representation.
As Dylan said in his famous song:
…And keep your eyes wide
The chance won’t come again…
…And don’t criticise
what you can’t understand…