BAR STANDARDS BOARD SEEKS TO MAKE IT EASIER FOR MEMBERS OF THE PUBLIC TO INSTRUCT BARRISTERS DIRECTLY
The Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, is consulting on amendments to its Code of Conduct for barristers following a review of its public access rules.
Barristers are usually instructed by solicitors to act on behalf of their clients; however the public access scheme allows a barrister to be instructed directly by a member of the public without the need for a solicitor.
At present, the BSB’s public access rules do not allow a client who may be eligible for public funding to instruct a public access barrister. This is one of the rules the BSB seeks to change. The consultation also suggests that barristers should have a duty to ensure that, before accepting public access instructions, the client is able to make an informed decision about whether to apply for legal aid or to proceed with public access representation.
The intended change to the public access rules follow on from a “mini” consultation paper, published in July 2011. The paper sought views on the possibility of relaxing rule 3(1) of the public access rules to enable a client to have the discretion to use a public access barrister even if they are eligible for public funding.
In addition to reviewing rule 3(1), the consultation also looks into relaxing rule 2, which currently prohibits barristers with less than 3 years’ practising experience from accepting public access instructions.
Commenting on the Public Access consultation, Baroness Deech, Chair of the Bar Standards Board said:
“We made a commitment to carry out a review of the public access rules when changes to the rules were approved by the overarching regulator, the Legal Services Board, in March 2010.
“As a result, we take the provisional view that allowing clients who are eligible for legal aid to make an informed decision about whether or not to opt for public access representation will improve access to justice whilst protecting and promoting the interests of clients. We hope that removing the three year practising experience requirement will also enhance consumer choice by providing consumers with as wide a pool as possible from which to select their representation.
“This review forms part of our wider work in relation to the move from prescriptive rules to more outcomes focused regulation.”
The consultation is open from 1 December 2011 to 9 March 2012 and interested parties can download the consultation paper from:
www.barstandardsboard.org.uk/consultations/OpenConsultations/publicaccess/
- Rule 2 of the Public Access Rules Provides:
Before accepting any public access instructions from or on behalf of a lay client who has not also instructed a solicitor or other professional client, a barrister must :-
(i) Be properly qualified by having more than 3 years’ practising experience, by having undertaken and satisfactorily completed the appropriate training, and by registering with the Bar Council as a Public Access practitioner; and
(ii) Take such steps as are reasonably necessary to ascertain whether it would be in the best interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client.
- Rule 3(1) of the Public Access Rules provides:
“A barrister may not accept direct instructions from or on behalf of a lay client:
(1) In or in connection with any matter or proceedings in which it is likely that the lay client would be eligible for public funding.”
- We would prefer to receive responses to the consultation by e-mail but hard copy responses are also welcome. Responses should be sent to paconsultation@barstandardsboard.org.uk by the closing date of 9 March 2012. Alternatively responses can be posted to:
Clare Vicary
Bar Standards Board
289-293 High Holborn
London
WC1V 7HZ
Downloads of the consultation paper and the response form are available on our website: www.barstandardsboard.org.uk/consultations/OpenConsultations/publicaccess/
- The Bar Standards Board regulates barristers called to the Bar in England and Wales in the public interest and is responsible for: