‘Baby barrister’ threat to solicitors
Barristers with under three years’ practising experience will be able to take instructions directly from clients if the Bar Standards Board’s latest plan for the extension of public access rules is approved.
The board heard last week that ‘baby barristers’ may be the only representation some clients can afford.
Proposals finalised last week would allow more lay clients to use barristers without going through a solicitor by removing bans on barristers accepting work where the client may be eligible for legal aid, and on allowing barristers with less than three years’ practising experience from accepting public access instructions.
The Law Society has previously opposed removing the current three-year limit. Responding to a consultation in March, the Society said: ‘Dealing directly with clients requires a level of maturity and expertise which the majority of entrants to the profession cannot be expected to possess.’
At last week’s BSB meeting, Patricia Robertson QC, chair of the board’s standards committee, said the current rules had been introduced in 2004 with ‘a degree of nervousness’ as they were so novel, and that some aspects now appear to be ‘overcautious’. She said the scheme needs to be viewed in the wider context given the imminent legal aid cuts and expected rise in the number of litigants in person.
Robertson cited a Civil Justice Council report from November 2011 which suggested that ‘expanded public access’ could be part of the solution to the problem of litigants in person.
The BSB’s proposal acknowledges that relaxing the prohibitions carries the risk that clients might instruct a public access barrister when it could be in their best interests to apply for legal aid, and that newly qualified barristers will undertake work they lack the experience to handle. But the paper claims the current rules ‘restrict choice’ and adversely affect access to justice.
Robertson said all barristers have a duty not to take on cases beyond their competence. She said: ‘“Baby barristers” are very competent and may be the only representation that people can afford. They know an awful lot more about the law and procedure than their clients.’
The BSB will submit its proposals to the Legal Services Board next month. The BSB’s meeting also heard calls for the ‘naming and shaming’ of solicitors who request referral fees for work. The payment of such fees is prohibited by the bar’s code of conduct.
Comments
Oh come on!
"Dealing directly with clients requires a level of maturity and expertise which the majority of entrants to the profession cannot be expected to possess."
Well then why are Solicitors allowed to deal with the public directly, and run their cases without supervision, immediately upon qualification? I am a Solicitor and even I think that the Law Society's comments are patronizing to say the least. They do not teach you how to deal with the public either on the LPC or the BVC (or whatever it is called now) so everybody is in the same boat. At a minimum age of 24 and 6/7 years of training I am fairly sure that Barristers are perfectly capable of holding a conversation with an actual person and advising them about the law.
I too am staggered by this
I too am staggered by this quote from the Law Society.
Dealing directly with clients in fact requires common sense, empathy, emotional intelligence and communication skills. None of these traits seem to have been deployed in the release of this appallingly arrogant statement.
Agreed.
Hear Hear.
Solicitor/barrister - equally as qualified and capable just employed in a different way. As more and more people will be directly accessing a barrister due to financial difficulties I think we need to be injecting confidence into the profession not as you say, patronising them.
The answer to David's
The answer to David's question is that they are not. A solicitor cannot practise on his or her own until qualified. An employed solicitor has to be supervised.
Qualified as in "qualified to
Qualified as in "qualified to supervise" (i.e. passed both Management Course stages and held at least 36 months practising certificates), as opposed to qualified as a solicitor.
Incidentally the Bar Code of Conduct provides that a self-employed barrister may not practice outside chambers without having held 36 months practising certificates also.
The idea is that barristers are supposed to be self-employed individual professionals, answerable to and supervised by nobody.
Would you let a trainee solicitor independently, and without supervision, take instructions to conduct litigation?
Of course the reality of modern chambers is different, and I agree the patronising tone of the Law Society's announcement doesn't help. Why don't they simply point out the above facts (that solicitors are either qualified to supervise or employed and supervised by somebody who is qualified to supervise; whereas a newly qualified barrister - which could include a second six pupil - isn't)?
This is a good idea that
This is a good idea that gives access to those like me who when acting as LIP can get background help at a reasonable cost. If the quality of advice dependant on the type of case is complex then you pay your money and take a chance.
I beleive that juniors are quite capable of researching and asking big brother for help when needed. One needs to balance the cost of what is at stake against the overall costs and I think insurers need to also open the market up more for litigation funding. If Juniors are being used they could potentially open the market for smaller claims of a less complex nature.
I have instructed on a direct access basis and the ball game can quickly be changed and caution is urged. Barristers on direct access can suddenly decide to ask for a solicitor to get involved doubling your costs. Presentation of your case as LIP is important ,but quality of Counsel is also just as crucial.
Meanwhile, in the real world ...
This is one of the dopiest ideas I've yet come across.
The fact is that most barristers haven't got a clue about how to actually run a case for a client on a day to day basis. They are used to being presented with a nicely prepared package and politely asked to deal with it, handing it back with a sigh of relief to let the unfortunate solicitor deal with the disappointed / aggrieved client.
They will not want to get involved in the day to day administration of the case that solicitors have to deal with, and I can't imagine the average barrister being happy to take calls from their client half a dozen times a day. They will also find out just how time-consuming such work is, but that they won’t be able to charge for doing it themselves. They will therefore have to employ lowly paid staff to do the grunt work, which basically means they’re just solicitors by a different name.
Furthermore, if they start dealing with cases in the same way that a solicitor does they're going to get a nasty shock when their PI quote comes in.
And so it ends...
When the regulators fail to stand up against the mite, power and wealth of the state, they fold, with only each other to turn on. Merger of the professions being the inevitable outcome... diluting age old tradition and expertise for commercialism, yearning for americanisation. Another bad day for the British justice system. When will a victory come our way? Silly me, it won't will it.
on the subject
I find this an interesting debate. Having dealt with some LiP’s in the past I find that any legal knowledge is better than no legal knowledge. The difficult thing appears when the problem is case management – which most barristers do not do – and gathering evidence – which again most barristers do not do although they most probably can advise on those matters thus resulting in same costs as if the claim was run by a firm of solicitors and the same insurable liabilities. In my opinion nothing is lost nothing is gained but there are more options. The only debate should be around whether the bar is lowered too low but when the treshold of the small claims track is raising I come back to my initial thoughts that any legal knowledge is better than no legal knowledge.
Direct Access etc
Most barristers offering direct access (of which I am one) are well aware of the limitations that are are imposed and apparent with case management. In fact I do remember being advised that we should consider advising the lay client to instruct a solicitor if the case management aspect is too difficult or if witnesses are to be traced/proofed etc. This could be either on an ad hoc basis or the traditional way of instructing a solicitor full stop.
The change allowing direct access for a case that might be eligible for legal aid is well overdue. I would say that it is logically indefensible to say that a client cannot choose to pay their own legal fees 'privately' if they want to use a barrister alone but it is OK to do so if they instruct a solicitor.
I think all professional lawyers are concerned about the way the legal profession is changing but that should not be a licence to attack or belittle other legal professionals without a very good reason. I am far from sure these proposed changes fit that category.
'Baby Barrister' threat to solicitors
Why does the Law Society respond in such patronising terms, and notably fail to offer a constructive alternative way forward? It is nonsense to suggest that barristers of under 3 years call would fail to deliver a reasonable service to public access clients. At least reduce the qualifying period to 1, or 2, years - get on with it and see how things develop from there. There is no need for extended 'consultation' - just do it! Chambers and individual barristers will find their own level of capability in delivering this service. Some will find it impractical or financially unsustainable, and the customer (together with Indemnity Insurers) will be the final judge. Increased competition will also help keep us solicitors on our toes, and barristers of recent call may even show up gaps in the service we solicitors are currently offering - is that what the Law Society fears?