Bar Council to work on direct access recommendation from OFT's report

BarDirect restrictions are brought into question as bar considers an extension of clients' direct access to barristers

The Bar Council is willing to explore the recommendation in the Office of Fair Trading's (OFT) report on competition in the professions to extend direct access.
Although the bar's consultation paper in response to the OFT's report looks largely unfavourably at the proposals, it does suggest widening direct access to provide clients with a wider choice and reduced costs.
Currently, barristers are subject to the BarDirect scheme, which lists a restrictive number of organisations and individuals that are able to refer work directly to barristers.
The committee that drew up the paper, chaired by Brick Court Chambers' Sir Sydney Kentridge QC, recommends consideration of widening BarDirect's existing access to include advisory work. The bar's international practice rules allow lay clients abroad to instruct barristers directly.
The committee will also consider direct access in tribunals and lower court cases. It indicated: “[Those] which do not involve extensive documentation or evidence, where costs need to be kept to a minimum and in which the client may be able to provide a barrister with the necessary information, and arrange the attendance of any witness at the hearing, without the need to instruct a solicitor.”
It also suggests that very simple Crown Court criminal cases could be handled in this way, such as when the accused is pleading guilty; and court of appeal cases, which might also be handled solely by a barrister.
Questions have been raised over at what point a barrister would refer work to solicitors which was referred directly to them, and whether in principle a client should simply go straight to a barrister.
However, it warns: “Any extension of direct access would have to be undertaken with the greatest care, initially on an experimental basis, and subject to appropriate safeguards.
“The danger is that, unless careful controls are maintained, the client, especially the unsophisticated client, will obtain a less-than-adequate service.”
Also, the current BarDirect scheme provides a pool of expertise and ensures that barristers are instructed by qualified people.

Bar Council responses to the OFT report
OFT says: The ban on barristers conducting litigation limits the number of competing litigators.
Bar Committee says: Barristers do not manage cases, so they have more objectivity and operate on lower overheads. Barristers do not handle clients' money. If they did, the Bar Council would have to set up a new regulatory regime.

OFT says: The reason for not having multidisciplinary part-nerships (MDPs) to uphold professional privilege does not apply, as MDPs distort competition in favour of lawyers. MDPs create an innovative one-stop shop.
Bar Committee says: MDPs are unnecessary, as the public would prefer to go to the most suitable independent barrister rather than the resident barrister, although it agrees on the one-stop shop point.

OFT says: Prohibiting the advertising of comparative fees and success rates may restrict competition and limit clients' ability to compare value for money.
Bar Committee says: Comparative advertising will achieve little. The variety of experience and degrees of specialism among chambers means telling a client about hourly rates is meaningless.

OFT says: Barring barristers from entering partnerships deters potential entrants to the profession who have no resources to fall back on when business dries up.
Bar Committee says: Partn-erships would result in more conflicts, and the more inroads into client choice the greater the reduction in competition. Partnerships are more expensive than sole practice. Barristers have more experience and skill than solicitors in advocacy and legal advice. The bar promotes competition by enabling small as well as large law firms similar access to chambers.

OFT says: The silk system provides inadequate 'peer review'; it creates a system that enhances the position of selective barristers; there are no exams needed to become a QC and no continuous quality assessment.
Bar Committee says: The peer review is intense – the silk is constantly under the eyes of a judge; and the committee has not received any complaints of silks being unworthy of their title.