Law Society hits out at barrister contracts for putting solicitors 'at disadvantage'

The new terms of contracts will come into being at the end of the month, when sets will have to issue terms and conditions upon instruction (11 January 2013). The City of London Law Society had been charged with devising the new wording, working alongside the Commercial Bar Association.

The Lawyer understands that the wording had been sent for sign-off last week, but is yet to be circulated among the Inns.

The aim is to give barristers a form of redress for late payment. Many at the bar have encountered resistance to the new contract from their solicitor clients, who feel it is too much of a power shift in favour of the advocate.

The Law Society has raised concerns over the contract in a move that is certain to create headaches for those negotiating the contracts.

The Bar Council said it was “surprised and disappointed” at the advice given by The Law Society.

Law Society members were told that several of the new clauses are couched in terms that favour the interests of barristers over those of instructing solicitors.

However, the terms are not mandatory and will not be relied upon as default terms. Insiders at the Bar Council said the contract was meant to give clients certainty regarding the obligations counsel are under.

It comes amid a wider process of modernisation at the bar, with the number of direct access instructions increasing steadily year on year.

It is not the first time the Bar Council and Law Society have come to blows over the contract. The council broke off talks in 2008 after it failed to reach a consensus on the wording, promising that it would take the issue forward alone.

Law Society president Lucy Scott-Moncrieff said that the contracts signified a power shift in the solicitor-barrister relationship.

“There must be a balance between the two interests and, most importantly, that of the client,” she said. “In our view, the bar’s proposal favours the barrister and gives the solicitor, and therefore the client, insufficient control or effective remedy in the event of inadequate performance by the barrister.”

She added, “It’s very disappointing that there could not have been agreement between the two professions on the content of the new standard contractual terms. In the absence of agreement, the society has had no alternative but to issue guidance to solicitors, warning them of provisions which could be contrary to their interests in the relationship with a barrister and offering them alternative contract clauses.”