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This minor article throws up some interesting points.
The first is the hopeless "advice" that is given by the SRA.
A young child could formulate a rule that was clear, concise and comprehensible, but the SRA must obfuscate with its Outcome Focussed Regulations that tell you nothing, and are then judged with the benefit of hindsight. To claim that the Code of Conduct is "very clear" could not be further from the truth. What is clear about having to treat clients fairly?. What is fair to one client may be unfair to another. Is it fair to say "I will charge a mark up of 100% on all disbursements"? Is it fair to tell them your charging rate without telling them that it is twice the price that anyone else in the area charges (even though you are no more competent or efficient than the others)?
The rule could be "Disbursements must only be charged to the client at cost", but it is not, because that is clear, and not Outcome Focussed.
The second is to note the Bar Council advice is refreshingly clear, unlike that of the the SRA.
The third is to note the article traduces the report (of which this issue is a small part) by asserting the Bar Council state:
"in general this practice is ‘quite wrong, and could raise serious questions about your solicitors’ own professional conduct’."
In fact the note recognises that there are times when a Barristers fee is properly treated an overhead of the solicitors practice and are effective subsumed into the overall fee that the solicitor charges. The Note reads:
"If the arrangement is one in which your fees are genuinely a cost to the solicitors themselves, and not a disbursement, then this may be permissible on the part of your solicitors, at least if it is in the client’s best interests in all the circumstances"
It also suggests that a mark up could be permissible if done with the informed agreement of the client, particularly if they are a sophisticated commercial client.
The note does not include the words "in general this practice".
The full sentence reads:
"Where your fees ought to be charged as a disbursement, however, this would be quite wrong, and could raise serious questions about your solicitors’ own professional conduct."
The fourth point is the Bar Council claims that it is "aware that in some situations, solicitors are charging clients more for the services of barristers .... than the barristers themselves are charging".
No explanation of which category thais falls into is given. If they are considered breaches of professional conduct have they reported the, and so with what result?