Barrister contracts: let battle commence

Competition between barristers and solicitors is on the rise, and the friction is starting to show between the profession’s representative bodies.

While many clerks are still contemplating how they will introduce barrister contracts to their solicitor clients, the Law Society took a swipe at the entire scheme.

Law Society president Lucy Scott-Moncrieff declared: “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.”

The new terms of contracts came into being today, with sets now having to issue terms and conditions upon instruction (11 January 2013). Litigators are only just learning of the development and many are apprehensive about how it is being implemented.

One lawyer surveyed eight sets that he regularly instructs, asking them whether they would use the standard terms that have been devised by the Bar Council. The answers were not uniform and all the clerks said it was the first time the issue had been raised with them by a lawyer.

Yet the contract, which will allow barristers to sue solicitors for unpaid fees, has an impact on barrister liabilities. Guidance issued by the Commercial Bar Association (Combar) and the City of London Law Society (CLLS) says the Bar Mutual, the insurance pool for barristers, has agreed to raise its indemnity limit to £100,000.

“Entering into a contract potentially gives rise to new liabilities against which barristers have traditionally been uninsured,” the document states. It says that the upper limit will be reviewed in light of claims.

Keystone Law partner Willliam Robins comments: “The new Bar Council standard terms have raised two unwelcome issues. The first is that different chambers take different approaches and the firm needs to manage these different commercial terms. The second is that the Bar Council terms are bar-centric and not as favourable to clients as the current position.

“As a firm of solicitors we’re bound by our professional rules to ensure we act in our clients’ best interests and, further, when instructing counsel we do so for our client and take on further fiduciary duties to protect our client. This has made, therefore, for some difficult conversations with senior clerks.”

One senior silk, practising for 30 years, said it would be an “embarrassment” to issue terms and conditions to lawyers whom he had worked alongside for more than a decade without an issue. It is a common theme among the bar.

The Law Society’s resistance to the contracts, however, has a ring of protectionism to it. Of course it has a duty to protect the interest of its members, but is that in the best interests of the client?

Hot on the heels of last week’s contracts warning, the Law Society has criticised the new public access training scheme being proposed by the Bar Standards Board.

The bar has been wary of embracing direct access instructions openly lest it upset traditional referrers. However, the trend is starting to reverse, and the BSB has responded with a proposed new public access training scheme.

The Legal Services Board (LSB) is currently considering BSB plans to allow any qualified barrister to undertake public access work involving direct contact with clients. Barristers will receive 12 hours of training as opposed to one day.

But the Law Society doesn’t seem to trust barristers with lay clients. They need more than just 12 hours of training, it says, and they should be supervised.

The bristling between the Law Society and its bar counterparts is all very well as long as it remains just that. Too much friction will split the profession and nobody wants that, especially as the Government wields its budget axe.

Increased competition is here to stay; it is about the survival of the fittest.