(Direct) access all areas: is the bar making the most of direct access?

With more than a third of the bar now registered, Catherine Baksi takes a look at the history of direct access and considers whether the bar is warming to the idea of dealing directly with clients.

The birth of direct access old–school Rumpole–style barristers have traditionally had as little contact with their lay clients as possible – keeping them at a safe distance through the buffer of their instructing solicitor. But times are changing. As solicitors have gained increased rights of audience and encroached on the work of the bar, barristers have been permitted to take instructions directly from clients, bypassing the solicitor.

When it was introduced in 2004, the public access scheme was restricted to certain practice areas – clients not eligible for legal aid and barristers over three years’ call. Andrew Granville Stafford, chairman of the Public Access Bar Association, notes that uptake in the early days was slow. However, as the restrictions have been removed, there has been a growth in the number of barristers being trained.

In 2010 and 2011 public access was extended to crime, family and immigration work, then in 2013 and 2014 the scheme was opened up to barristers of less than three years’ call and practitioners were allowed to conduct litigation. The rules were also amended to enable barristers to accept work from clients who were entitled to legal aid, but who preferred to instruct a public access barrister.

Changing landscape

Recent research published by the Bar Standards Board (BSB) and the Legal Services Board showed that 5,695  –more than a third of the practising profession – are registered for public access work. Half (54%) of them had dealt with between one and five cases in the past 12 months, while only 2% have undertaken 50 or more cases.

On average, the report shows that for around 60% of the 404 respondents, public access work accounts for between one and 10% of their fee income. The researchers acknowledge that the figures appear small, but say they represent a significant increase over the past three years, and the volumes of work are widely expected to increase.

Granville Stafford, who with Chris Bryden as Barristers Direct are one of three BSB approved providers of public access training, says people on the courses tend to be the young bar who are now able to do this work, or the ‘old school’ who held out for a long time but have decided to give it a go. ‘The attitude of many has changed from “over my dead body” to “everyone else is doing it, why not me?”’ he says.

Splitting the profession

However, Jonathan Maskew, director and co–founder of ShenSmith Barristers, which describes itself a ‘unique and remote business support service to barristers and chambers’ insists there has always been take-up of the practice and that a lot of innovative work is going on that people are unaware of. Many chambers, he says, have kept the fact that they do public access work firmly under their hats, or should that be wigs, for fear of damaging the relationship with instructing solicitors, who may refer their cases elsewhere if they fear they might be usurped. ‘The element of first contact with the lay client is key – solicitors don’t like to relinquish it, because it’s a revenue stream,’ explains Maskew.

But, insists Granville Smith, public access is not about doing away with solicitors: ‘There will always be clients who want (or need) the services of a solicitor to conduct their litigation for them. One thing that is drilled into us is that we must consider whether our client’s best interests would be served by instructing a solicitor.’

Direct hits

Public access work is undertaken across a diverse range of areas of law. However, the BSB and LSB research reveals that it is most common in family, chancery, employment, commercial, and general common law. In addition, Maskew says it works well for planning, regulatory and intellectual property work–the latter of which, he adds, is a growth area for this type of instruction.

Perhaps surprisingly, Maskew adds, criminal work is a ‘stand out opportunity’ since the reintroduction of means testing: ‘For those who have to pay a contribution towards their defence fees, they can get a more senior barrister through direct access.’

But the challenge, he says, is getting to the clients in the first place, when they may have a long–standing relationship with a solicitor. ‘It doesn't suit everybody,’ adds Maskew. ‘If you have a flow of good work from solicitors, it doesn’t make sense to disrupt that.’

The upside

The key benefits for the public are wider choice, speedier service and reduced costs. When people think about instructing a barrister, David Goddard, senior clerk at 4 Stone Buildings and member of the Bar Council’s public access panel, says they wrongly think that it will costs thousands of pounds. Whereas, early advice direct from a barrister, he says, can represent greater value for money.

In addition, adds Granville Smith, clients can make savings by conducting their case themselves and only engaging a lawyer at certain key stages – for tactical advice, representation at court or drafting particular documents.

The survey respondents suggest public access is best suited to consumers who are able to manage for themselves the administrative and other functions, including litigation, that are traditionally carried out by a solicitor. For the bar, there are challenges, most notably, says Granville Smith, the ‘demanding’ or ‘high maintenance’ client, for which solicitors’ firms are better equipped to deal with.

 Holding the purse strings

Then there is the issue of client money. ‘I heard a senior member of the BSB once say that holding client money is the root of all evil,’ says Granville Smith. And he has sympathy with that view, saying: ‘I do not want to be subject to the bookkeeping, the regulation or the insurance premiums, that go with handling client money.’

But he does not see rule 73 of the Code of Conduct, which prohibits barristers from receiving, controlling or holding client money, as a disadvantage to public access work. Clients, he explains, can pay their own disbursements, and while barristers cannot take money on account of fees, the escrow service launched by BARCO does the same job, and fixed fees can be paid in advance.

Jeremy Hopkins, legal services consultant at Clerkingwell Consulting, notes that there are also clerking issues, managing documents and communications and making it clear to the client what the barrister can and cannot do.

Getting the word out

A number of barristers who took part in the BSB research suggested that public access should be more widely marketed, in particular by the Bar Council, to raise awareness of it. However, there was also a reticence to do so overtly or without an assurance in any marketing that the scheme is not detrimental or a threat to solicitors.

Goddard suggests a television advert to promote it, similar to the daytime commercials for personal injury law firms. And he would have liked public access covered in an episode of BBC courtroom drama, Silk.

For Maskew, barristers themselves need to get their marketing and fees right. The former means making use of business and social networking–getting out and meeting prospective clients, coupled with a strong digital marketing strategy. ShenSmith Barristers produces short video presentations on YouTube, which it promotes through Twitter and Facebook. While the latter, he suggests, means fixed fees: ‘Clients don’t like hourly rates. Buyers of legal services want predictability in their legal spend’. ‘Some at the bar are reluctant to change their ways of practicing, but if they do not, new models will come into the market and take their work,’ he warns.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

Filed Under: Legal Services

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