Lucy Trevelyan examines the implications of the historic relaxation of Bar Council rules that will now allow barristers to receive instructions directly from the public


In 2001, a blistering Office of Fair Trading (OFT) report accused the bar of being too inaccessible and restrictive and called for an immediate opening of the profession.


Its main recommendations were to allow the public to instruct a barrister without a referral from a solicitor and to lift the ban on barristers forming partnerships – rather than remaining self-employed within a set of chambers as they are now.



Despite repeatedly knocking back calls from its own ranks to allow such direct access, the Bar Council performed a volte-face. Following a lengthy consultation process, the ban on direct access – apart from in the areas of crime, immigration, and matrimonial and family law – was lifted early last month (see [2004] Gazette, 8 July, 3). However, the ban on barristers forming partnerships remains.



Even before the damning OFT report, Marc Beaumont, a barrister practising from Windsor Chambers in Berkshire, had led calls for a relaxation of the rules, maintaining that such a move would be good for the public, the bar, and even for solicitors.


‘Even before the OFT report, I moved a private motion before the Bar Council calling for direct access to be approved. In rather typical fashion, the Bar Council rejected this motion but within three weeks of the OFT report the chairman of the bar came back to me and said that my proposals were more desirable than those made by the OFT – presumably because mine were somewhat more conservative.


‘The bar was effectively dragged kicking and screaming into being more proactive. Politically, the OFT pushed the bar into this – it created the political climate for such reform.’


Anthony Speaight QC, chairman of the council’s access to the bar committee, stresses that although some areas of work that up until now have been exclusively the preserve of solicitors will no longer be so, solicitors should look on the reform as an opportunity not a threat. ‘In some cases, it will mean cutting out the middle man. Until now a client may have had to pay out for solicitors’ fees even though all the client wants is a barrister’s opinion. There is a very strong public interest element in cutting out an unnecessary source of legal fees.


‘However, one should bear in mind that there has been no change in the function of barristers – barristers are not going to get involved in pursuing correspondence, or investigating for evidence with all the administrative demands that brings.


‘Solicitors may lose out on small pieces of work but I rather think this will be balanced out by other occasions where a client will approach a barrister for preliminary advice and the barrister will say that a solicitor needs to be involved and will suggest one.’


Mr Speaight adds: ‘The analogy I draw is with the medical profession: if you know the name of a specialist in Harley Street you want to go to you can ring and arrange a consultation. Most people won’t know that they need a specialist or won’t know which specialist they need, but there is a proportion who know what they want and want to go direct and not as a referral. I don’t see why we shouldn’t have the same arrangement.’


Mr Beaumont agrees that a clear dividing line will remain as to what a barrister can and cannot do and there will be many occasions where a solicitor will have to be brought in, such as where proceedings need to be issued. ‘The relationship between a barrister and a solicitor will change and become more balanced. A barrister may for the first time become a source of work for solicitors, with barristers no longer being regarded by solicitors as purely people who seek to court solicitors for professional reasons.


‘Solicitors will also have to accept that barristers will become more managerial &150; they will want to know what’s happening with the cases they have initiated. It will be more of a team effort where the barrister has kicked things off.’


The Law Society has been reticent in commenting on the reforms and although it ostensibly welcomes the move, some doubts remain. Janet Paraskeva, the Society’s chief executive, says: ‘The Law Society supports moves to widen choice for consumers of legal services. However, whatever the model for delivering legal services, it is essential that the public is properly protected when things go wrong.’


A Chancery Lane spokeswoman expands: ‘The things that might go wrong are things like shoddy service, bad advice, representatives running off with clients’ money. In terms of safeguards, we think that people should have the same safeguards as they do when they instruct a solicitor directly.’


However, Mr Speaight says: ‘If barristers are negligent they can be sued. If they provide an inadequate professional service there can be a claim for compensation through the Complaints Commissioner [Zahida Manzoor]. If it is a claim for misconduct it goes through the usual system. No one has suggested a safeguard we ought to put in place that we haven’t put in place.’


He adds that in any case barristers are still banned from undertaking work – such as issuing claim forms and handling client money – which tend to generate the largest number of complaints against solicitors if things go awry.


Barristers wishing to partake in direct access arrangements are required to attend a one-day course beforehand, which consists of a mixture of seminar material and role-playing. Take-up of the course, says Mr Speaight, has not so far been overwhelming but he expects to see several hundred lawyers having passed through the course by next year.

Beaumont: called for direct access Mr Beaumont – who has attended the College of Law course and is already accepting direct access instructions – says that those barristers making themselves available for direct access will have to learn skills, particularly in their initial dealings with new clients.

He says: ‘When a set of instructions comes to you from a solicitor, the solicitor has done the spade work and has sorted the wheat from the chaff. You are presented with an edited set of facts that deal with relevancies. When you deal with a client directly, you have to extract the factual background before you can give useful advice. This can be frustrating and time-consuming because a client cannot always focus in a clinical way on the key facts.’


Mr Speaight says direct access will not be suitable in all situations and indeed, the scheme does not apply to criminal, family and immigration barristers, who will still be required to receive instructions from solicitors. He says these areas were exempted for a variety of different reasons.


‘Criminal is exempt as a matter of policy. We think there is a huge benefit in advocates being a little bit detached from witnesses and there is a huge benefit for the public in maintaining the traditional solicitor/barrister arrangement in the Crown Court. We think it is desirable in most matrimonial and family proceedings for a party to have regular contact with their lawyer for emotional support as well as legal advice – and that sort of relationship is one which a solicitor is ideally suited to.’


He adds that immigration is excluded because a satisfactory working relationship between solicitors and barristers has already been introduced following the introduction of the government’s system of accreditation of advisers.


He says: ‘One of the most obvious categories of potential clients will be small and medium-sized businesses. Most businessmen know or know of barristers that specialise in work in their industry.


‘I exclude large companies because generally they will have their own in-house legal departments. We will also see the more informed private client – for example, for those who want tax advice, the best place to get really good tax advice is the tax bar.’


Mr Beaumont says that anything that gives barristers more access to the marketplace has got to be a good thing, particularly given the drop in volume of work the bar has faced in the past seven years. ‘The bar has been hit by the triple whammy of the abolition of civil legal aid in most cases, the increased use of alternative dispute resolution, and the fact that solicitors – particularly bigger firms – are increasingly doing their own advocacy.


‘The general picture is one of a severe decrease in bar work. Anything that can bring the bar closer to a natural source of work can only be a good thing,’ he adds.


But it remains to be seen how many chambers will be opening their doors directly to the public.



Lucy Trevelyan is a freelance writer