Improving transparency standards for clients of the Bar

Bar Standards Board (BSB) Director General, Dr Vanessa Davies, sets out the regulator’s requirements for price, service and redress transparency following the Competition and Markets Authority’s (CMAs) 2016 recommendations.

In December 2016, the CMA concluded that competition in legal services for individual consumers and small businesses is not working well. In particular, it found that there is not enough information available on price, quality and service to help those who need legal support to choose the best option. The CMA set out a package of measures which challenged us – and the other frontline legal regulators and the Legal Services Board (LSB) – and providers to help customers better navigate the market to find a service which meets their needs.

As the regulator of barristers in England and Wales, our initial focus was on improving transparency for consumers about the services provided by barristers, their fees and the availability of redress. We agreed with the CMA that making this information more available across the legal sector could promote competition and help consumers access the market more easily. To consider how the Bar could best respond to the CMA’s recommendations, taking into account the specialist legal services provided by the Bar, and in particular the fact that much of its work is carried out on a referral basis from solicitors, we began by identifying the good practice that already exists in this area in chambers and building on that. We also began piloting some possible new approaches with a small number of practitioners.

In October 2017, we issued a policy consultation that sought views on a number of ways in which our rules, in light of the CMA recommendations, could target those consumers who were likely to benefit most from increased transparency. Clearly our rules would need to focus on Public Access barristers who deal with clients directly, but our consultation also sought views on whether we should apply similar disclosure requirements when barristers are offering services via a solicitor to anyone who has a right to complain to the Legal Ombudsman.

During the autumn of 2017, we held a number of well-attended events around the country and online, so that we could listen to what barristers and other interested stakeholders thought about these issues. It became clear that there must be a balance between improving consumer understanding and genuinely promoting competition on the one hand, and not overburdening barristers and chambers or producing information overload for clients on the other. The Board met in February this year to consider this balance, the feedback received during the events, the formal responses to the consultation and the evidence presented during a further period of research and a pilot scheme with a group of barristers’ chambers and other organisations.

As a result, in February 2018, the BSB published a suggested approach to implementing the CMA’s transparency recommendations at the Bar. This contained a number of high-level proposals which were then refined further and presented in a more detailed rule change consultation published in September 2018 and which closed in December. We are confident that the new rules to improve transparency standards adequately reflect the often highly complex nature of barristers’ work. The purpose of the most recent consultation was to make sure that the way we have drafted the new rules is clear, and that the guidance will help the Bar to comply with the new rules.

The consultation closed on 14 December. We are currently reviewing our rules in the light of responses we received to the consultation but, subject to that review, our proposals are that the new rules require all self-employed barristers, chambers and BSB regulated entities to publish on their websites:

● their most commonly used pricing models for legal services, such as whether they charge fixed fees or hourly rates;
● a statement making it clear that professional or direct access clients may make contact to obtain a quotation for legal services;
● the areas of law in which they most commonly provide legal services, a description of the legal services which they most commonly provide and information about the factors which might influence the timescales of a case;
● the text “regulated by the Bar Standards Board”;
● information about complaints procedures, any right to complain to the Legal Ombudsman (LeO) and how to do this, and any time limits for making a complaint;
● a link to the decision data on the LeO’s website, allowing consumers to see which providers received an ombudsman’s decision in the previous calendar year; and
● a link to the Barristers’ Register on the BSB’s website, allowing consumers to see whether a barrister (1) has a current practising certificate and (2) has any disciplinary findings.

Barristers undertaking Public Access work will also need to display a link to the Public Access Guidance for Lay Clients on the BSB’s website. If they provide certain Public Access services then, in certain circumstances, their websites will also need to state the following in relation to those services:

● their pricing model(s), such as fixed fee or hourly rate;
● indicative fees and the circumstances in which they may vary;
● whether their fees include VAT;
● likely additional costs e.g. court fees;
● a description of the service, including a statement of the key stages; and
● an indicative timescale for the key stages.

In applying requirements to publish information about the prices consumers are likely to pay for legal services, we have prioritised the less bespoke services
provided by Public Access barristers. For example, services which are most commonly purchased by less experienced and less expert consumers. We have also prioritised the services which are offered in practice areas with more vulnerable clients. The Public Access services about which, in certain circumstances, barristers will need to publish information on their websites are as follows:

● child arrangements arising out of divorce or separation;
● Employment Tribunal cases (advice and representation for employers and employees);
● financial disputes arising out of divorce;
● immigration appeals (First-tier Tribunal);
● Inheritance Act advice;
● licensing applications in relation to business premises;
● personal injury claims;
● summary only motoring offences (advice and representation for defendants); and
● winding-up petitions.

The new rules are subject to approval by the LSB and the transparency requirements will come into force by May 2019. There will be a grace period between May and December 2019 in order for the Bar to prepare to comply. From January 2020, the BSB will undertake spot-checking to ensure compliance. The effectiveness of the new requirements will be evaluated from December 2020.

We are confident that our final approach will be proportionate and balance consumers’ needs for greater transparency of information about price, service and redress with the need not to overburden the Bar with cumbersome or restrictive requirements.

Dr Vanessa Davies, Director General, Bar Standards Board (BSB)

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