VII. TheBar

A. The Scope of Regulation

The Bar did not need initially to embrace OFR because it did not follow the solicitors into the regulation of ABS. Eventually it announced that it would introduce entity regulation, probably covering ‘barrister-only entities’ and legal disciplinary partner­ships.

²¹⁴ E Kinney, ‘Private Accreditation as a Substitute for Direct Government Regulation in Public Health Insurance Programs: When is it Appropriate?’ (1995) 57(4) Law and Contemporary Problems 47; M Casile and A Davis-Blake, ‘When Accreditation Standards Change: Factors Affecting Differential Responsiveness of Public and Private Organizations’ (2002) 45(1) Academy of Management Journal 180.

²¹⁵ D Bindman, ‘BSB sets course for barrister partnerships in 2013 and ABS in 2014’ Legal Futures 22 October 2012.

²¹⁶ ‘New BSB Handbook to give barristers more freedom and flexibility’ (www.barstandardsboard.org. uk/media-centre/press-releases/new-bsb-handbook-to-give-barristers-more-freedom-and-flexibility/). apply for authorisation to conduct litigation, offering a ‘one-stop shop’ for litigation and advocacy services. This meant that clients would not have to conduct the admin­istrative tasks of litigation when instructing public access barristers.

B. Regulatory Strategy

The new regime allows barristers to continue working as traditional, self-employed referral practitioners, or with others in firms, companies or other entities. Previous rules preventing self-employed barristers from sharing premises and forming associa­tions with non-barristers were removed, allowing them to pool risks and resources.

The BSB continued with many of the Bar’s established methods for monitoring risk. For example, in 2012, 635 chambers were sent the monitoring questionnaire and 624 responded.^[1215] Of these, 83 per cent were compliant in all areas and given a low risk rating, 13 per cent received a medium risk rating and 4 per cent a high risk rating. All have since addressed areas of non-compliance. Of the 104 chambers that were non-compliant in one area or more, the most frequent problems were not having a written complaints procedure, not providing clients who were considering a complaint with a copy of a complaints procedure and not informing clients of the existence of the Legal Ombudsman.

The 2012 monitoring exercise found that sole practitioners are more likely to trigger enforcement action by not completing the questionnaire. In general, there was no pattern of failure; certain kinds of chambers were not consistently non-compliant. There was, for example, no evidence suggesting that small chambers were more likely than large chambers to be non-compliant. Sole practitioners were no more likely to be the subject of complaints than barristers in chambers. Some variables were consistent with general compliance. For example, chambers carrying out work under the Money Laundering Regulations were significantly more likely to comply with complaints-handling requirements.^[1216]

The new regulatory approach includes adjustments to the traditional approach to discipline, considered in more detail in the next chapter. They include the introduction of a new power of disqualification covering people working for BSB-authorised indi­viduals or businesses. The BSB also proposed increasing the available sanctions for ‘administrative action’ from £300 to £3,000 for individuals and £5,000 for businesses.

C. Bar Standards Board Handbook 2014

i. Background

The Bar Code had not been comprehensively reviewed since 1981. In June 2007, the Bar embarked on a three-year review of the Code, so as to be ready to respond to the LSA 2007. An initial consultation on revisions issued by the Bar Standards Board noted that the Code was drafted very legalistically and inconsistently, some rules being very detailed and others very general with little added guidance.^[1217] The BSB proposed adopting the core principles and plain English approach of the 2007 Solicitors’ Code. The review tackled business structures, core principles, the cab rank rule and client care and concluded with complaints and discipline.

The BSB review led to the introduction of the BSB Handbook in 2014, replacing the Code of Conduct. Part 2 of the Handbook comprises a code of conduct. This intro­duces core duties and outcomes, but does not use indicative behaviours. Some rules have been retained in order to ensure clarity about what is expected of barristers. These tend to be less prescriptive than the former Code of Conduct and are supplemented by guidance. The new code aspires to provide more focus and guidance on what the outcome of a rule should be, rather than describing how to act in every situation.

ii. Organisation: Core Duties and Sections

Unlike its predecessor, the BSB Handbook 2014 contains a set of core duties appli­cable to all barristers, whether or not they hold current practising certificates. This means that they apply to unregistered barristers when they are providing legal services. The core duties are:

----- observing the duty to the court in the administration of justice (CD1);

----- acting in the best interests of each client (CD2);

----- acting with integrity and honesty (CD3);

----- maintaining independence (CD4);

---- behaving in a way which does not diminish the trust and confidence which the public places in the barrister or the profession (CD5);

----- keeping the affairs of each client confidential (CD6);

----- providing a competent standard of work and service to each client (CD7); ----- not discriminating improperly in relation to any person (CD8);

----- being open and co-operative with the regulator (CD9); and

---- managing your practice, and carrying out your role within it, competently and in such a way as to achieve compliance with legal and regulatory obligations (CD10).^[1218]

The outcomes precede each section of rules.

iii. Rules, Guidance and Outcomes

The BSB application for approval to the LSB explained that the approach was to express all mandatory requirements as rules. The guidance provided further informa­tion or examples of behaviour that would breach the rules.^[1219] The rules are intended to be prescriptive only where this is necessary to achieve a desired outcome. In par­ticular, barristers were given freedom to organise their business except insofar as the regulatory objectives, especially the interests of clients, might be adversely affected.

The BSB took a quite different approach to outcomes to the SRA. It explained that outcomes are not themselves mandatory rules, but factors which BSB-regulated persons should have in mind when considering how the core duties and rules should be applied in particular circumstances.^[1220] Barristers would need to consider outcomes when interpreting the rules. Whether or an outcome is achieved will be taken into account when considering alleged breaches of core duties and the rules. Misconduct charges and administrative sanctions would however continue to be based on breaches of core duties and rules, not outcomes.^[1221]

For the first time, the BSB’s new Handbook contains guidance to the rules, which was previously provided separately on the BSB website. This is intended to serve several purposes. It assists in the interpretation of rules by explaining how they apply in certain circumstances. It draws attention to related rules or provides examples of behaviour leading to compliance with core duties and rules. If regulated persons fail to comply with guidance they may be under an additional burden. They will need to demonstrate how the core duty or rule has been met.

With the introduction of the new Handbook, the BSB is introducing powers of disqualification for lay employees of chambers and other regulated organisations. The Disciplinary Tribunal or Interim Panel would have the power to disqualify any non-authorised employees if they breach or cause others to breach the rules. It will be a breach of the Handbook for any person authorised by the BSB to employ the disqualified person without prior approval. The Head of Professional Practice at the Bar Standards Board anticipated that the power would be used relatively infrequently.

iv. Changes Introduced by the BSB Handbook

The new BSB Handbook made a number of changes to the previous regime. It was initially approved and published with sections relating to entity regulation scored through, pending LSB approval. The rules recognised the new right of self-employed barristers to apply for practising certificate extensions to conduct litigation. This addressed the problem that clients of public access barristers had to act as self-representing litigants. Rules preventing self-employed barristers from sharing premises and forming associations with non-barristers were also removed.

Among the substantive rules, the cab rank rule was extended to non-advocacy work. It was also applied to instructions for work in England and Wales coming from lawyers in Scotland, Northern Ireland and from EEA Member States. The new Handbook retained provisions in the previous code prohibiting handling client money, paying referral fees and managing client affairs. Various aspects of the new Handbook related to discipline. The new code required barristers self-report and report others in relation to ‘serious misconduct’. There was, however, an exemption for barristers providing advice through the Bar Council Ethics Helpline.

The Handbook introduced a disqualification power covering persons, whether barris­ters or employees of BSB-regulated persons, who breach, or cause an authorised person to breach, regulatory rules applying to them. A core duty to co-operate with the regulator came with an obligation on chambers to appoint a member responsible for liaising with the BSB. This replaced the duty on heads of chambers. All barristers are under a duty to ensure, commensurate with their role, that their chambers are administered competently.

VIII.