The Bar Council has cautioned unregistered barristers acting as solicitors’ agents against appearing in public hearings to ensure they do not open themselves up to criminal liability.
The warning puts it at odds with the business models of some companies providing advocacy services, which describe the bar’s interpretation of the law as incorrect.
According to the Bar Council, the non-statutory guidance is ‘to draw barristers’ attention to issues relating to appearing as a solicitor’s agent’. The Gazette understands that the representative body is concerned that unregistered barristers are exercising rights of audience unlawfully due to a grey area over the type of hearing in which they are entitled to appear.
The Legal Services Act allows unregistered persons to appear in chambers hearings as long as they are assisting in the conduct of litigation and under the supervision of a solicitor. But the definition ‘chambers hearings’ used in the act is now outmoded, the guidance says, as the Civil Procedure Rules (CPR) now refer simply to ‘in private’ and ‘in public’ hearings.
Some interpret the act as giving solicitor-agents rights of audience in any hearing that would have been classified as ‘in chambers’ under the old rule. But the Bar Council’s guidance adopts a narrower definition.
It says that due to the uncertainty surrounding the expression ‘in chambers’, the ‘safest course’ would be for solicitors’ agents to appear only in private hearings.
The bar’s definition puts it odds with some of the services offered by advocacy providers including Quest Legal Advocates and LPC Law. Both offer graduates from the bar professional training course (BPTC) on a self-employed basis as solicitors’ agents.
At Quest, solicitors’ agents appear in MoJ stage-three hearings, which are heard in public, while at LPC they act in some interim application hearings, which the Bar Council has classed as a public hearing.
The Bar Council notes that it is a criminal offence for unauthorised persons to exercise a right of audience if they have not satisfied criteria set out by the Legal Services Act. This, it said, ‘demonstrates the seriousness which parliament attaches to these restrictions’.
The guidance states: ‘The Bar Council is concerned to promote compliance with the act, since this is in the interests of proper administration of justice, the protection of consumers and the protection of unregistered barristers who might otherwise open themselves up to potential criminal liability.’
The Bar Council did not set out its views on particular business arrangements it feels do not comply with the rules, but council minutes reveal that it has resolved to produce another document setting out its views on certain arrangements.
Providers of solicitors’ agents vigorously contested the Bar Council’s interpretation of the rules.
A spokeswoman for Quest Legal Advocates told the Gazette that it had ‘absolute confidence’ that its advocates satisfy the criteria needed to qualify as exempt persons. She said the Bar Council’s suggestion that exempt persons should appear only in private hearings was ‘unduly and unnecessarily cautious’, and ‘simply wrong’.
She said: ‘Exempt persons (assuming compliance with the remaining statutory criteria) are entitled to appear in any case which, under the rules of the court previously in force, would have been heard in chambers. Whether that hearing is now hearing in public or private is irrelevant.’
She said that a provision in the rules (CPR 29, PDA 1.14) expressly preserves the rights of audience that existed at the time the CPRs were introduced.
Meanwhile a spokesman for LPC Law contested the Bar Council’s ‘overly simplistic’ definitions of public and private hearings. The bar’s guidance classes interim application hearings as public hearings, but LPC says that some of these proceedings, including those under the Consumer Credit Act, are private.
The firm sends solicitor-agents to these hearings.
The spokesman argued that solicitors’ agents can exercise rights of audience for all hearings that were classed as in chambers under the old rules. But he said that to avoid disagreements with the judiciary or members of the bar, the business sends authorised persons to any hearing the firm knows is being heard in public.