DIRECT ACCESS
QUESTIONS
General Approach
1 Are these the appropriate principles to inform our work? Restrictions on Work & Clients 2 Is our understanding of the restrictions on what barristers may do correct? 3 Is our view that the barrister should be permitted to accept any type of work on the basis described in paragraphs 23 to 29 above correct? Or are there any types of work that should be prohibited? 4 Do you agree with the views expressed limiting liability? If not, please state your views. 5 Are our suggestions on direct access for police station work appropriate? 6 In criminal cases:
- Is it appropriate for barristers to be able to give advice in police stations? If so what restrictions, if any, should be imposed or guidance given?
- What categories of advocacy work, if any, are suitable for direct access? What are they?
- what should be the position in respect of advisory work (other than in the police station)?
- Should any, and if so what, additional restrictions be imposed on direct access, i.e. to the effect that a barrister should never do a particular type of case on this basis?
7 In family matters:
- What categories of work or types of case, if any, are suitable for direct access? What are they?
- Should any, and if so what, additional restrictions be imposed on direct access, i.e. to the effect that a barrister should never do a particular type of case on this basis?
8 Should the direct instruction of third parties on behalf of the client be prohibited by the Code? 9 Should the Code be clarified in the way we propose in respect of (a) proofing witnesses and clients and (b) collecting evidence? 10 Should barristers or their staff be expressly prohibited from delivering documents to court? 11 Is our approach to the occasions on which barristers must refuse work correct?
- Are there any other issues concerning clients or work that we have missed?
13 Is the BarDIRECT model appropriate for assessing clients and are there matters that should be included or excluded? 14 Are our proposals concerning intermediaries instructing on behalf of clients appropriate, and are there other issues which we ought to include in guidance in this area? Relationship with Clients 15 Is there any reason why the BarDIRECT scheme should not continue? 16 Are there other issues beyond those identified in paragraph 66 about which barristers should be required to ensure that their clients are informed? 17 Do you agree that it is appropriate to distinguish for this purpose between different types of client? How do you consider that this would best be done? 18 Is it the proper course for the Code to provide that where such a letter has been provided to the client this will generally be evidence of compliance with the requirement to provide proper information to the client? 19 Should a written agreement with the client be a pre-condition of doing direct access work? 20 Should barristers be permitted to accept a single instruction of retainer involving the requirement to perform a series of services whose date and nature cannot yet be determined? 21 Should there be a provision in the Code requiring the inclusion of a term setting out the priority of the Code over any duties set out in the contract? 22 Is the approach to withdrawal at paragraphs 73-75 appropriate?
- Is our approach at paragraphs 76-80 to instruction by intermediaries correct?
Fees 24 Do the provisions concerning fees at paragraphs 81-82 need to be included in the Code of Conduct? 25 Should there be a requirement in the Code as to the detail to be provided on fee notes? If so, what should the requirement be? Or should this matter be dealt with merely as guidance? Is any change needed to normal practice on fee notes? 26 Should the Bar Council consider offering any form of adjudication in disputes as to quantum of fees? If so, how should such a system be arranged? Or is it appropriate to leave disputes over fees to be resolved through the complaints system and by the courts? 27 Do you have any comment on our analysis of the situations in which barristers will, and will not, be entitled to accept payment in advance? 28 We should be grateful for views on the various options outlined in paragraphs 104-107 for securing fees. 29 Should barristers include in their contracts the right to hold on to documents if their fees are unpaid? If so, should there be recourse to the Bar Council to adjudicate on whether the barrister is entitled to continue to retain the documents? Relationship with Solicitors 30 Will the proposals at paragraphs 110-112 be sufficient to safeguard the independence of barristers and protect the client? 31 Is this approach to contact with solicitors appropriate? Chambers Administration 32 Are our views on storage of documents correct? Are further safeguards and guidance needed, in particular as identified in paragraph 118? 33 Are our proposed requirements for administrative support appropriate? What safeguards should be built in? 34 Do there need to be other requirements for handling complaints within Chambers?
- Are there other administrative issues that need to be dealt with? Regulatory Issues
- Is a training course necessary?
37 Is it right that, generally, barristers who have been in practice for less than 3 years should not be permitted to accept instructions on a direct access basis without some measure of control? If so what form should this take? Does it make a difference if the barrister in the case is working with leading counsel? 38 Should sole practitioners be under a special obligation to satisfy the Bar Council as to the administrative arrangements they have in place in respect of interruption of practice before they become entitled to accept direct access work? 39 Should our rules concerning practice while bankrupt etc be modified? 40 Should our Interim Suspension Rules be modified as suggested above? 41 Are the modifications suggested to prevent unsuitable barristers accepting direct access work appropriate? 42 Should the Bar Council have powers to intervene in the practice of a barrister? In what circumstances should those powers be exercised? 43 Should the Bar Council have power to call for documents in these circumstances? How would it enforce such powers? 44 Is the imposition of such professional obligation the right way to secure the Bar Council powers? 45 How should the costs of regulating direct access be recouped? 46 Should the Bar Council make any alterations to the requirements concerning insurance?
47 Is the membership of BMIF as a whole prepared to participate in the potentially increased risk from those barristers who choose to take work on a direct access basis?
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