The Jackson reforms will heighten potential conflicts of interest where barristers are dealing directly with the public, experts at the bar conference warned last week.
The reforms will alter the rules underpinning conditional fee agreements and introduce damages-based agreements, which will allow lawyers to take a stake in damages in civil litigation.
Under direct access - whereby clients approach a member of the bar without a solicitor - clients will rely on their barrister to advise them of the best funding deal, even though it may not be the most profitable option for the barrister.
Kevin Leigh, vice-chair of Bar Council’s access to the bar committee, described the conflict over funding advice as ‘the elephant in the room’.
He said: ‘Without a solicitor, you are supposed to [give] exactly the same sort of advice as a solicitor would give. I may have to say [to a client], you need to get this checked. But people are becoming desperate. They can’t afford a solicitor. There is pressure on them. The reality is they will take anything they can get so that they can litigate their problem.
‘It’s nice to think that the bar is honourable, but sometimes there is even a pressure [on barristers], to do things which are against their better judgement, because you think - where does the client go from here?
‘In the real world, there is a tension between [the client’s interests and thinking] how am I going to get paid? Someone needs to think that through. The Jackson reforms do not deal with that problem.’
Guy Mansfield QC, who chaired the Bar Council’s direct access working party, added: ‘These new arrangements are really going to heighten all sorts of problems. I have always been of the view that barristers are not actually better people than solicitors, we just have fewer temptations. That’s why we don’t run off with the client funds; we just don’t hold them.’
Nigel Jones QC, head of Hardwicke Chambers, highlighted the difficulty for barristers in sending clients to get independent advice on the proposed funding arrangement. ‘The only way to get independent advice is to go to one of your competitors,’ he said. ‘They might say, I will do it for 45% of damages instead of 50%.’
Mark Friston, chair of the Bar Council civil (private) panel, added that barristers would welcome some advice on best practice from the Bar Standards Board to guide them through this difficult area.