Preparing for barrister contracts

The concept of contracts between barristers and solicitors will become a reality at the end of January, when sets will have to issue terms and conditions upon instruction. Clerks are considering how best to communicate contracted wordings to their clients, many of whom are unaware the new rules are coming into play.

Barrister contracts have been debated at the bar for more than a decade. Most think they are a good thing in theory, in that they give barristers a route to claim unpaid fees. The practicality, however, is another matter.

One senior clerk says the difficulty comes when informing instructing solicitors they must sign a contract should they wish to secure an advocate.

“We’re getting significant opposition to this,” another senior clerk comments. “For many solicitors, change is the enemy. They want to know what happens if they don’t sign up - there’s uncertainty around enforceability.”

The introduction of contracts is widely seen as being yet another way in which the bar is ‘commercialising’. It will give chambers the chance to charge interest on unpaid fees or, in extreme cases, take solicitors to court for breach of contract.

For some it is yet another example of the power shift between solicitor and barrister. While the bar does not wish to crow, it does want to compete with solicitors and there are signs the regulators are waking up to this.

Just last week the FSA approved a direct access payment scheme for chambers that will allow sets to handle client money for the first time.

Alternative business structures (ABS) will arrive at the inns next year and chambers will be allowed to form partnerships, a move some say will turn the referral profession on its head.

Contracts will allow advocates to dictate their terms formally. Those that refuse to get on board with this will lose their regulatory protection, although what that means is yet to be deciphered.

The relationship between barrister and solicitor is about to get a lot more corporate.

Katy Dowell