Commercial pressures could threaten barristers’ independence and tempt them to take risks that harm consumers, the bar regulator has warned.
In its first risk outlook, the Bar Standards Board says pressures arise from cuts to legal aid, the rising number of litigants in person, and competition from alternative business structures and solicitors' firms.
While some barristers and chambers may respond positively, others might resort to practices that could lead to a ‘compromising of ethical principles, lowering of standards and/or unrealistic or hidden pricing in order to win business’.
Barristers under such pressure might be vulnerable to improper suggestions from wealthy clients, the report says. ‘Our fear is that by trying to win and retain influential clients or intermediaries, some members of the bar could resort to financial tactics that harm the wider public interest and threaten the bar’s independence.’
It notes that the 'cab rank rule' does not apply for public access services. As a result, if public access becomes more popular, 'powerful clients may instruct barristers and apply commercial pressure directly to compromise independence or integrity'.
One area the bar regulator is ‘hearing about anecdotally’ is the use of retainer fees, which can be used to stop barristers acting for other clients.
The regulator says it is already seeing the consequence of commercial pressure on the bar from the complaints it receives, investigations and enforcement action it takes.
Discriminatory working practices are also identified as a risk. The regulator says that although evidence was ‘limited’, there are indications that senior barristers are ‘misusing their position of power over pupils and junior barristers’.
It adds: ‘We have also heard about women being given lower-paid work than men and suggestions that clerks are not always allocating work or agreeing fees fairly for junior barristers.’
The last key issue it identified was unmet legal need, due to the number of consumers taking forward cases themselves as LiPs. But the BSB said this presented an opportunity for the bar as a large number of clients are ‘out there’ to be served.
It said: ‘There is an opportunity for members of the bar and other lawyers who find new ways to make themselves accessible to consumers not currently benefiting from legal assistance.’
It suggested that this could be done by marketing public legal education work, adopting new technologies and exploring models such as online crowdfunding for litigation.
Andrew Burns, chair of the BSB, said in his foreword: ‘We know things are tough for many parts of the bar […] However by embracing change and by working together to address the important themes discussed in the document, we hope to make significant progress to address the risks we have identified.’