BARRISTERS could be given a new duty to make sure unscrupulous solicitors do not cheat clients under the new conditional fees' scheme
The duty means they will have to advise lay clients on the suitability of conditional fees in all circumstances and is likely to be contained in Bar Council guidelines to be issued to barristers this autumn.
Michael Kalisher QC, chair of the Bar's legal services' committee and heading the work on conditional fee guidance, says: “There are a variety of dangers which everybody recognises, and both the Bar and Law Society are concerned to ensure that members are given guidance to avoid these dangers.”
Kalisher says the society has primary responsibility to protect the public because of the role of solicitors, “but the Bar must make sure that conditional fees work for the benefit of the public and not the detriment”.
The Bar's main concern is that clients may be encouraged to participate in conditional fee arrangements where “inappropriate”, says Kalisher.
Conditional fees, paid out of the damages awarded, could cost the successful client more than conventional fee arrangements, particularly where their case is strong enough for them to enjoy a low risk of losing.
The Bar's guidelines will set out to ensure proper advice is given to clients, that agreements are fair to clients, and that the terms agreed between solicitor and barrister are fair and clearly defined.
Barristers' duties to clients will include ensuring that a conditional fee arrangement is appropriate for the client, litigation is justifiable, the agreement's terms are fair to the client and the fees charged reflect the strength of the case.
Taxation of barristers' fees, heavily opposed by the Bar Council, are now thought unlikely. Barristers will have a 100 per cent maximum uplift, the same as solicitors.
Russell Wallman, head of professional policy at the Law Society, disagrees with the Bar's view that conditional fees could be inappropriate in certain instances.
“There is no such case where a conditional fee is inappropriate. It's a question of what the client prefers, which depends on the client's circumstances.”
Guidelines for solicitors are being produced and the society is liaising with the Bar.
“We have clearly got some differences of emphasis on this but I don't think there are any major differences,” says Wallman