Bar aiming to bypass ‘superfluous’ solicitors

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Solicitors are dismissed as ‘superfluous intermediaries’ in a new bar consultation paper which recommends making it easier for the public to bypass them and instruct barristers directly.

The Bar Standards Board is examining whether barristers should be able to accept direct instructions from clients eligible for public funding, and also whether to lift the ban on barristers with under three years’ practising experience from accepting public access instructions.

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In addition, to safeguard the public, the BSB suggests that barristers should have a duty to ensure that, before accepting public access instructions, the lay client is able to make an informed decision about whether to apply for legal aid or proceed with public access representation.

The proposals follow a mini-consultation earlier this year, to which the BSB received 40 responses. The board’s standards committee has provisionally decided that the changes would be ‘desirable’ and in the public interest.

Anecdotal evidence, it said, suggests clients opt to instruct a barrister directly despite their eligibility for legal aid where, for example: it is cheaper to obtain the services of a single barrister privately rather than pay the fees of both a legal aid solicitor and a barrister; a client wishes to instruct a barrister more senior than would be available through legal aid; a client has applied for legal aid but has not been happy with the work the legal aid solicitor has done; it is difficult to locate a suitable, publicly funded solicitor who will accept their case.

The BSB paper says the change would improve client choice and provide greater access to justice for clients who find themselves without access to legal aid solicitors.

Removing the three-year rule and allowing barristers to do direct access work from the time they qualify would, says the BSB, expand consumer choice, create greater competition and increase the supply of high quality and competitively priced advocacy services.

The paper says that the Legal Aid, Sentencing and Punishment of Offenders Bill will disqualify large numbers of people from legal aid and make it imperative that the public have access to affordable legal advice.

‘The purpose of allowing lay clients to instruct barristers directly is to remove unnecessary barriers to the provision of barristers’ services and to save costs by cutting out superfluous intermediaries,’ the document states.

‘Unless marginalised sections of the public are able to access comparatively cheap legal advice it may be that a significant proportion is denied access to justice.’

The public access scheme was first introduced in 2004 to allow barristers to be instructed directly by a lay client without the need for a solicitor. Subject to the BSB’s current rules, barristers can now take instructions directly from the public in crime, civil and family work.

To date, 4,143 barristers have completed the public access training course, though not all of these carry out public access work.

The consultation paper points out that while the number of public access barristers has increased, the number of complaints about them has fallen. The BSB received 33 complaints about public access barristers between 2007 and 2011, with only two received this year, down from a high of 13 in 2009.

BSB chair Lady Deech said: ‘We made a commitment to carry out a review of the public access rules when changes to the rules were approved by the over-arching regulator, the Legal Services Board, in March 2010.

‘As a result, we take the provisional view that allowing clients who are eligible for legal aid to make an informed decision about whether or not to opt for public access representation will improve access to justice whilst protecting and promoting the interests of clients.’

Deech said: ‘We hope that removing the three-year practising experience requirement will also enhance consumer choice by providing consumers with as wide a pool as possible from which to select their representation.’

The consultation closes on 9 March 2012; the consultation paper can be read here.

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