The Law Society has said terms governing the relationship between solicitors and barristers should not make solicitors liable for the payment of barristers’ fees where a client has not paid up.

Responding to a Bar Standards Board consultation on amending the 'cab rank rule', including whether to retain a set of standard contractual terms, the Law Society said that any terms should seek to ensure risk is shared fairly.

The response says: ‘In a situation where the client has not made funds available, it is likely that neither the solicitor nor the barrister will be paid; solicitors should not be expected to bear all the risk or to take a "double hit" in this situation and this should be open to negotiation between the solicitor and barrister when discussing terms.’

The BSB said it has not thought it reasonable 'to expect barristers to be obliged to act without a contractual right to be paid for their services, or without clarity around when and how they are to be paid'.

The Law Society’s response also said contractual terms governing the rule should not be determined by regulators, and instead should be agreed between solicitors and barristers.

The bar regulator had warned that this could lead to a conflict if a solicitor and barrister both believe proposed terms to be unreasonable. But the Law Society said that practitioners should be able to work this out between themselves, ‘just as any other professionals would be expected to in any other similar scenario’.

It suggested that in the event of a dispute, the regulator should explore whether the joint tribunal service offered by the Bar Council and Law Society could be extended to cover any disagreements over terms.