CONTRACTS AND ACCESS TO THE BAR
Response of the North-Eastern Circuit in respect of
Civil and Family Work
Circuit Provision of Legal Services
It is essential to consideration of the issues raised by the Bar Council paper to
understand the distinction between the way in which civil and family legal services are
provided outside London, even in the principal provincial centres, in contrast with
London.
In some provincial centres there are reasonably large, reasonably specialist civil and in particular chancery/commercial sets. The same is not generally true of family work. Such large sets are for instance 5 Fountain Court, Birmingham; Dean’s Court, Manchester The Ropewalk, Nottingham. On the North-Eastern Circuit there are only two sets which arguably fall within this category being respectively Park Lane Chambers in Leeds which is predominantly a civil and to a lesser degree family set and Chancery House Chambers, Leeds which is predominantly a chancery/commercial set. Elsewhere on the Circuits the reality in most instances is that each set of Chambers provides a wide spectrum of expertise, principally but not exclusively criminal, with groups of practitioners who provide other civil and family services often also retaining some criminal work.
The administrative organisation, financial support for and administration of the more generalised Circuit Chambers reflects a less sophisticated model than in London and the larger specialist sets. There is usually a division of clerking services between crime and civil/family, but much of the day to day administration of Chambers still revolves around dealing with changes in the list and listing work to enable barristers to undertake individual pieces of court work. The staffing of these Chambers is usually relatively modest with few highly paid employees and with an improving but still limited administrative back-up.
It is recognised that with the likely changes in the rights of audience to undertake and the funding of criminal work this will have a significant effect on the financial viability of the organisation and administration of many provincial Chambers. It may result in so-called "mega-sets" on the 5 Fountain Court, Birmingham model with a series of separate departments dealing with different areas of litigation - criminal, personal injuries, chancery, commercial, family. It may result in the formation of medium sized specialist sets following the principal areas of specialisation - criminal, civil/common law, chancery/ commercial, family. Much will depend on the actual changes and the lead/assistance and advice given both from the centre, the Bar Council, and on individual Circuits from the Circuit leadership.
Summary of Response
It is our overriding belief that in order for the Bar to survive in the provinces providing a meaningful advocacy and advisory service to its existing or preferably an increased clientele there must be:
A change/relaxation in the existing Code of Conduct to:
- enable groups of barristers within Chambers, Chambers and if necessary whole or part of a Circuit to enter into groups for the purpose of CFAs, thereby avoiding the present restrictions provided by "purse-sharing".
- enable groups of barristers within Chambers, Chambers and if necessary whole or part of a Circuit to tender for and enter into Block Contracting Agreements with the Legal Aid authority and in respect of other publicly funded work, eg local authorities, and into Bulk Contracting Agreements in respect of private work, eg insurance companies, large commercial organisations seeking litigation/dispute advice.
- enable groups of barristers within Chambers, Chambers and if necessary whole or part of a Circuit to extend access to the Bar services by Direct Licensed Access - the extension to include members of professional bodies in industry, eg Chartered Institute of Company Secretaries, and large bodies with sufficient in-house organisation/administration but without an in-house legal department such as insurance companies in personal injuries work and medium sized companies in commercial work.
- enable barristers to undertake such part of the preparation for advice and conduct at trial presently undertaken by solicitors to enable the members of the Bar to provide the overall advisory and advocacy services necessary by reason of extended access by Direct Licensed Access.
We appreciate that our suggestions may be regarded as relatively radical, but we foresee a situation in which the Government, intent on reducing the cost of legal services, seek to block contract in respect of criminal Legal Aid and probably those areas of civil and family work for which Legal Aid will be retained. In those circumstances, the Bar must compete meaningfully with solicitors who, if they have increased rights of audience, are likely to wish to tender for this work. Since this will involve the Bar organising itself to provide the services necessary for block contracting, it is our view that at the same time the Bar should be provided with a Code of Conduct which will enable it to provide the same service to other public bodies and within the private sector, subject to the instructing body being licensed for the purpose of DLA (see generally Summary in Consultation Paper at Para 2.14, p.7).
We consider that these changes of the Code of Conduct will enable the Bar, particularly in the provinces, to continue and hopefully to increase its provision of legal services compatible with the role of the Bar as advocates and specialist advisors. The Bar will retain an actual as well as perceived difference between what barristers do and what solicitors do. These services will be advocacy and specialist advice based. If the existing Code of Conduct remains or there is only limited revision, the reality is that the Bar will be shackled to outmoded working practices and precluded from providing the legal services it should be providing to those who wish to receive them.
Importantly, provincially it would prevent the Bar from adapting to the new legal and financial landscape and continuing to have a real presence in the provision of legal services.
Also we consider that there should be a significant change in the basis of instruction and remuneration of the Bar. The Code of Conduct should be changed to provide contractual relationships, the ability of barristers to sue for their fees, proper parameters for the time scale of payment and liability of the client if the solicitors are in default.
Detailed Comments/Issues and Questions
It is our principal thesis that Direct Professional Access (DPA) should be extended so that in reality it becomes Direct Licensed Access (DLA) in respect of all aspects of advocacy and litigation and would include significant elements of work presently precluded by Paragraph 901 of the Code of Conduct.
We consider that such a change would essentially retain the existing function but would relax the present restrictions on the source of instructions consistent with the Bar’s actual and perceived role as specialist advocates and advisors. It is a logical response to the needs of those who would have DLA and the actual change in the sophistication and needs of those clients.
A modest change, such a restricted extension of DPA (Direct Professional Access) would be tinkering with the system. The retention of rights of direct access only in respect of non-litigious/advice work would probably preclude even criminal Legal Aid block contracting because of the necessity for those undertaking Legal Aid block contracting to undertake some functions which would fall foul of Paragraph 901. In the civil and family law areas of practice, particularly civil, at present many large organisations have access to the Bar because they have in-house legal departments employing solicitors who can instruct Counsel for advocacy as well as advisory/non-contentious purposes. There are other bodies of a similar type, competence and in whose integrity we can have faith who should be granted Direct Licensed Access on the same basis. This raises the difficult question of whether in such circumstances members of the Bar should be entitled to issue legal process (see Consultation Paper, Para 4.12, p.16 and Section 28(5) of the 1990 Act -
the Bar Council and authorised body). It does seem odd that whilst a barrister is considered competent to prepare all Court proceedings including a Writ and Statement of Claim and to advise upon and conduct interlocutory hearings, he is not able to issue the proceedings personally or by an authorised agent or to deal with mundane administrative tasks which pale into insignificance against the responsibility involved in advising in respect of preparing the legal documentation and undertaking the advocacy function. If solicitors are to have extended rights of audience in the Higher Courts, why should the Bar not have the right to issue process in those cases where there is DLA? Surely this would provide a consistency rather than perpetuating an unjustified distinction.
A modern, properly organised set of Chambers, whether in London or provincially, whether undertaking solely work in a specialist field - civil, chancery/commercial, family -or comprising individual departments within a mega-set, will be capable of properly administering DLA and employing the necessary additional administrative staff to provide the wider advocacy and advice service we contemplate.
Biddle recognised restrictions imposed on the Bar by the existing Code of Conduct in respect of CFA work (see generally Biddle, Chapter 4 "Alternative Options to 5, ‘Consequences of Adopting each Structure’ and 13, ‘Cross-Chambers Groups’.") It is important to contemplate Biddle’s approach when considering CFAS (and also block contracting) that the potential solutions in respect of CFAs particularly are:
· Sharing agreements within Chambers.
· Partnership.
· Limited liability company.
The problems envisaged with any such arrangement were:
· The necessity for change in the Code of Conduct to facilitate purse-sharing and to deal with the conflict of interests/conflicting out.
· Major re-organisation and financial and material structures within Chambers.
· The effect on Chambers’ structures of individual groups within Chambers or cross-Chambers CFA purse-sharing arrangements.
· The prospect of polarisation of practitioners undertaking CFA work to larger specialist Chambers, removing them from traditional Chambers groups.
We are acutely conscious of the provisions of Paragraph 501(c), (e) and (f) and Paragraph 605 of the Code of Conduct and the wider issues of the distinction between the existing Cab Rank Rule and the Independence of the Bar and the problems of conflict of interest which are central to any "purse-sharing" agreement.
We perceive that the effect of any purse-sharing agreement, whether involving a small or large group of members of the Bar, will result in "conflicting out". It will mean that once a member of the purse-sharing group has accepted a CFA, any other member of the same
purse-sharing group will be precluded from accepting instructions for any party where there is a conflict and also from appearing in a part-time judicial capacity to try the case. This problem will not be solved by insurance because the problem is central to the question of conflict of interest. In a CFA case we consider the issue of conflict of interest to be primarily between the member of the Bar and his client because of the conflict between payment for work undertaken and advice to the client. It is our view that that conflict is far greater than the apparent conflict in purse-sharing.
The problem of purse-sharing which applies both to CFAs and to Block Contracting will have a dramatic impact, particularly on the Circuits. Traditionally on Circuit, particularly in the smaller centres, members of the same Chambers act for and against each other regularly, often appearing for a plaintiff one day and a defendant the next day. This traditional way of working will be precluded if a Chambers model in respect of CFAs such as that put forward at the Queen Elizabeth Centre conference is implemented.
The practical effect of a Chambers CFA purse-sharing agreement will mean that once one member of the group is retained for the plaintiff in the CFA agreement, no other member of the group (the Chambers) can appear for the defendant or for any other party to the litigation such as a third party where there is a conflict of interest. This will mean, for instance, in a small centre that if the Chambers have a CFA agreement they will be in most instances effectively precluded from undertaking any defendant work in that Court centre. This will have a very unfortunate polarising effect. Once it is known to local solicitors that Chambers has a Chambers CFA agreement including all members of Chambers (which will not take long) a number of unhappy situations may prevail. First, once a member of Chambers is instructed, it therefore precludes anybody else from Chambers appearing for the defendant or trying the case. Second, Chambers will get known to the defendants’ solicitors as a plaintiff CFA set and will receive no or no significant defendants’ work. A further situation may arise where solicitors actually use the conflicting out situation to conflict out a barrister or Chambers by deliberately picking an individual in those Chambers to represent the plaintiff All these features would have a dramatic effect on the provincial Bar, particularly on smaller more generalised Chambers.
Without the opportunity to compete on a level playing field in respect of public Block Contracting and private Bulk Contracting work, the Bar and particularly the provincial civil and family Bar, will lose a vast amount of its traditional work and lose the opportunity to expand into new potentially lucrative areas. There must be a revision of the existing Code of Conduct to enable Block and Bulk contracting and CFA purse-sharing without the effect of contracting out. In our view, this will involve a careful rewriting of the existing conflict rules to enable Block Contracting, Bulk contracting and CFA purse-sharing but providing detailed rules in respect of the conflicts which may arise within such agreements. Thus preventing actual detriment to the client because of conflict but removing the restrictions on such modes of practice by perceived rather than actual conflict. We accept that this will be a difficult task, but we do not consider that it is impossible and we consider it essential.
The Bar’s existing Terms of Work and Terms of Fee Collection are outmoded being a consequence of a mode of practice and remuneration from "another age". The way forward must be a further streamlining of the terms on which legal services are provided to public bodies, DLA bodies and lay clients. We consider that the existing position is inconsistent with reasonable commercial practice. The system is such that members of the Bar who receive instructions in criminal publicly funded work, family publicly funded work, criminal civil and family Legal Aid, on the one hand have to accept restrictions on the basis of remuneration intended to reduce rather than increase fees and on the other hand are subjected to massive periods of delay in payment. In any significant case, criminal, civil or family (excepting pre-1993 civil Legal Aid Certificates), there are substantial delays in payment for periods of six, nine or twelve months, such delays being the rule rather than the exception. The "Slate" reforms in respect of the Black Listing of solicitors to enforce payment of fees has been only partially successful and there is still a sizeable minority of solicitors who are reluctant to pay Counsel’s fees within a reasonable time frame.
We consider that the only sensible way forward is a contractual relationship providing detailed terms as to the retention of legal services and in respect of payment between the public body or other instructing body such as a DPA or private client. This should include:
· The ability of the barrister to sue for his fees.
· Proper parameters for the timescale of payment.
· Liability of the private client if the solicitor is in default.
We consider that such radical changes as to the terms of work and payment are essential if the Bar is to become a modem profession. If the Bar is to modernise, is to provide appropriate administrative functions, modern IT equipment and communication and a wider professional service on the basis that we have contemplated at Paragraphs 3.1 and 3.2 above, this can only be done if the Bar has a regular and unfettered income stream similar to any other organisation which has to provide the same facilities to its clients/ customers. Without adequate cash flow, members of the Bar and Chambers will not be able to make the changes necessary to provide the modern legal services contemplated by the Lord Chancellor’s Department (in effect the Government), nor will particularly provincial Chambers and the smaller Chambers be able either to form into specialist groupings or form "mega-sets". The administrative cost of providing premises for and administering a "mega-set" which would have some economies of scale is not possible without regular income/satisfactory cash flow.
Conclusion
1. We are conscious that we have not addressed all of the issues raised in the Consultation Paper. Further, we are conscious that we have not addressed the issues necessarily specifically to the individual questions posed in the Consultation Paper at Paragraph 7 - Summary of Questions. This is because our appreciation of the way forward for the Provincial Bar in some respects differs from the basis of the Consultation Paper. Wehave addressed issues which we perceive as having a specific impact in respect of theProvincial Bar but also affecting the Bar generally.
2. We approve and adopt the forward thinking proposals in respect of primarily criminal work in the paper of Malcolm Swift QC, the Leader of the North-Eastern Circuit, previously submitted. We consider that that paper is both thought provoking and realistic. He foresees real problems and suggests real solutions. It is our hope that in this paper we have addressed the civil and family implications of many of the matters considered by Malcolm Swift QC.
David Wilby QC (Chairman), Jill Black QC, Gary Burrell QC
Ian Atherton, Neil Cameron, Philip Kramer
November 1998
