Thursday, September 11, 2008

Direct Access by Clients to the Bar

I and my colleague, Avis Whyte, have been commissioned by the Bar Council to examine the issues surrounding direct access to barristers by clients. The Bar Council would like to see more such work being done. This is the background to the ongoing research.

In the past several years the Bar has moved towards becoming a direct access profession as well as traditionally being a referral access one. It has achieved this via two routes.

One is to license certain groups and institutions as capable of instructing barristers directly. This is where the consumer/client is sanctioned. The second is to certify barristers as being able to deal with clients direct rather than through the mediation of a solicitor. This entails the producer being sanctioned as capable.

Since the 19th century the Bar and the solicitors' profession have agreed on certain divisions of labour. Among them is that the Bar would normally receive its business from solicitors rather than lay clients directly. These arrangements meant the Bar could hold to specific values such as the cab-rank rule and being a sole practitioner. The result being that a small number of barristers could actually service a wide range of clients without coming into conflict.

For barristers there was always a tension in the lawyer-client relationship because it was essentially a three-way relationship not the normal dyadic one. To whom, then, is the barrister beholden? Solicitor or lay client? There are formal answers and less formal ones. But the issues are not clear. Moreover, as a referral profession it would be difficult to build up extensive, long-term, repeat player relationships in the way solicitors do.

With the changes making their way through the legal profession, especially those stimulated by the Clementi Report, all lawyers are having to revisit time-honoured conventions. For the Bar, a key one is how it should relate to clients.

Direct access is a way into the future for the Bar. Of course it raises a slew of questions about how it should be transacted, under what conditions, within what ethical constraints, and with an awareness that it would affect the Bar's relationship with solicitors.

For the Bar to remain strong and vibrant in the 21st century, it will need to face these issues directly. There is little room for compromise.
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