Archway to Elm Court by Ruth Hartnup

Under the Bar Council scheme launched in 2004, members of the public and businesses may now instruct barristers directly and without the intervention of a solicitor. There has been a lot of talk and discussion on this new “freedom” since then, along the lines of the following questions:

  • Will it benefit members of the public?
  • How easy is it to find, assess and then engage a direct access barrister?
  • Will it be better for barristers willing to work directly with their clients? Will it be more profitable?
  • What effect will it have on solicitors? Will this reduce their market share?
  • What new methods are emerging for managing Direct access work?

This article is an attempt to find answers to these questions and generally to ask, “How is it going?”

The first part contains background information about access methods for members of the public and is based on my web page where links to the websites mentioned will be found: www.venables.co.uk/barristers-public-access.htm.

This is then followed by contributions from two barristers currently developing their direct access practice, Quentin Hunt and Stephen Innes, and by a contribution from Rory Nunn, Public Access Clerk at Clerksroom Direct, a company managing – and developing – the whole area of direct access.

Directories and access methods for members of the public

Direct Access Portal (DAP) is the official Bar Council portal with the definitive, up to date list of qualified collaborating direct access barristers. The site also includes mediators and arbitrators. The site is free for consumers to use and there is no login or subscription involved. The advanced search facility includes over 80 specialisms as well as the broad categories of civil, criminal, family and international. You can include the barrister’s location or geographic area in the search as well, and also the specific dates for which assistance is needed (if known). See the article by Stephen Crowne, then Chief Executive of the Bar Council, in the Internet Newsletter for Lawyers, November 2015.

The Barristers Register is provided by the Bar Standards Board (BSB). As it says on the site, “The Register is an online database which displays details of all barristers who are authorised to practise in England and Wales and who have a current practising certificate. The register will display the dates for which a barrister’s practising certificate is valid. It includes information about barristers’ practising status, their practising address, the reserved legal activities they are authorised to undertake and whether they have been the subject of any disciplinary findings.”

Note that this register is not just of public access barristers; it is a register of all barristers. You cannot search to find a public access barrister but you can check that any particular barrister is “registered to undertake public access”.

Clerksroom Direct, based on the well-established “virtual chambers” Clerksroom, provides access to 1,000 barristers from more than 200 barristers’ chambers. The client registers on the system and then has opportunities to select a barrister by legal area, level of experience and fee offered. In most cases, a free half hour consultation is also available. BSB public access rules have been automated to include online client ID checks through to a secure payment system. Overall, the system provides a secure online enquiry, quote, tender, case management, document management and payment system for clients and barristers to engage with each other. Barristers do not pay any fees to promote themselves through the Clerksroom Direct portal. Obtaining a fee quote from a barrister is completely free and the user only pays for the service if they proceed to instruct the barrister directly.

Havers find-a-barrister search engine provides a searching process to more than 11,000 barristers by their expertise, by town, whether junior or QC, or simply by their name or chambers. The search engine is free to use. Barristers can also be searched under a category of “Accepts Public Access work”. Havers work in collaboration with most major publishers to provide links from their directory to case reports and other information on the publishers’ websites. Barristers have to pay a subscription for this enhanced facility but their basic contact details are provided for free.

myBarrister is an online directory that enables people and businesses to locate the specialised skills they need, helping them resolve legal issues, defend against prosecution, take legal action or simply providing specialist legal advice on a particular situation. The client uses the search process to find the barrister they want, or they can ask for assistance from myBarrister staff. Further phone calls are made through the myBarrister system until the barrister is chosen after which myBarrister has no further role in the process.

Public Access Bar Association (PABA) represents the interests of the several thousand English and Welsh barristers who offer direct legal services to the public and the business community in cases where the use of a solicitor is no longer necessary. They hold events and seminars and provide a newsletter for members. They have recently provided detailed responses to two BSB Consultations relating to public access work.

Direct access – a criminal practice

By Quentin Hunt

I very much enjoy having a direct access practice that runs happily alongside my traditional practice.

I started a direct access practice several years ago, actively marketing myself to solicitors for referrals. My website is at www.bestcriminaldefencebarrister.co.uk. It has been a hard yet rewarding task building a successful practice in this way and I have learned many valuable lessons along the way.

As the defence side of things took off I decided to launch a parallel website offering my speciality in Private Prosecutions at www.private-prosecution.co.uk.

Direct access is not, however, a practice path that suits all barristers. Many barristers like to have a solicitor on board as a shield between them and the client, which allows them to concentrate on the more traditional aspects of the bar. Having a busy direct practice means that inevitably your clients will have your direct mobile telephone number and email address. As a barrister you will soon discover what it is like to be a solicitor, receiving communication at all hours of the day and at weekends.

In addition to your court work you will find that there is a very large amount of correspondence that needs to be dealt with and many more telephone calls to field. This inevitably means longer hours and more stress. A very organised approach to paperwork and deadlines is needed as there is no one available to remind you if a deadline is approaching.

The administration side of things is also far greater. In addition to the clerking and admin team at 2 Bedford Row, who are excellent, I employ a PA who deals with the multitude of administrative tasks that would otherwise swamp my practice, especially in times when I am in trial and already working long days. I am of the view that there is no half way: you either commit to direct access fully or maintain the traditional model.

On the flip side a direct access practice can be immensely rewarding. Seeing a client’s case from initial interview through to successful acquittal is, in my opinion, far more rewarding than merely taking the case on at the court stage. I am also of the view that on a direct access case a barrister will get to know the case far better than in a traditional case. Building a closer relationship with the client not only allows you a better insight into the evidence but also allows you greater insight into important tactical decisions to be made such as the decision of whether to call your client or the approach to be taken to the cross examination of witnesses. I also personally like the increase in face time with clients where you can really get under the skin of the case.

Building a direct access practice is not easy. I estimate that it took me around five years of hard work to do so and I have seen many of my colleagues attempt to do so but lose enthusiasm when things did not take off as quickly or efficiently as they thought.

My view is that, although it is traditionally thought that direct access is a model in competition with solicitors, the contrary is true. I work closely with a number of solicitors and we refer each other work and use each other’s skills interchangeably. I cannot conduct a police station interview and therefore need a solicitor partner to work with; by the same token, the solicitor knows that if the case requires a solicitor they will be the first in line to take over the litigation. I would estimate that 50 per cent of my direct access work comes from solicitor referrals; such a proportion can only come if you maintain and cultivate existing relationships with solicitors, making them understand that a relationship with a direct access barrister can be mutually beneficial.

Quentin Hunt is a criminal barrister operating from 2 Bedford Row Chambers. He accepts instructions both by direct access and traditionally. Email qhunt@2bedfordrow.co.uk. Twitter @crimedefence.

Direct access – a civil practice

By Stephen Innes

From a barrister’s perspective, the snow forecast for the recent deep freeze provided an apt metaphor. The first couple of flakes to fall catch your attention, but with no real expectation of anything settling; then you wake up the next morning and the landscape has suddenly been transformed. The first few public access barristers were regarded as intrepid pioneers, but direct access is now an accepted feature of legal life.

At present the spread of direct access work is uneven: some sets of chambers have a distinct direct access identity and it is clearly at the heart of their business plan; in others, the approach is more cautious and availability for direct access is not widely promoted; everyone wants the dream client: the SME with a competent director, the high net worth individual who can run a case with a bit of guidance; but many are less enthusiastic about advertising which draws in the individual who walks in with a grudge and carrier bags full of papers.

However, it is clear that direct access is here to stay. My predictions are that within 5 years 90 per cent of the bar will be direct access qualified and that within 10 years the label will no longer be necessary at all. There are some areas where improvements could be made to facilitate direct access even further.

A major attraction for clients is that with direct access the fees are fixed in advance. This accords with the direction of travel in the legal world, away from hourly rates and towards fixed prices. The system can be clunky where the client wants repeated tasks being carried out, that require small chunks of time but a new client care letter on each occasion. Given the ease with which payments can now be made electronically, a greater degree of flexibility here would be welcome.

Direct access can be more challenging where a case is in its infancy, or indeed at the point of conception, and will need to be run for its entire lifetime. Because of the traditional division of labour between the Bar and solicitors, barristers and their chambers are not so well set up for tasks such as conducting regular correspondence, evidence gathering or preparing disclosure lists or bundles.

Some barristers have the additional authorisation required to be able to conduct litigation (and thus take steps like issuing applications, filing and serving court documents) but at present these are the exception rather than the rule. This will gradually change as the boundaries between solicitors’ and barristers’ roles continue to be eroded.

So too there will be an increasing need for solicitors being brought in by barristers to assist in discrete tasks in longer running cases. The buzzword here is “unbundling” of services. It can be difficult for solicitors to dip in and out of case: if their task is just to prepare witness statements for example, in a case which is being primarily run under the direction of a barrister, what is the role of the solicitor if she does not agree with some aspect of the barrister’s advice? Is she even required to consider that advice? Some assistance was given by the Court of Appeal in Minkin v Landsberg [2016] 1 WLR 1489 – not a case about direct access, but about solicitors brought in to draft documents to carry into effect a compromise agreed by a litigant in person in a matrimonial case. As ever, defining the lawyer’s role carefully in writing at the outset is crucial, but solicitors prepared to be flexible and innovative in working with counsel will continue to thrive in this new environment.

Stephen Innes is a barrister at 4 New Square, specialising in professional negligence and costs. His website is at www.verycivilbarrister.co.uk. Email S.Innes@4newsquare.com. Twitter @vcbarrister.

Clerksroom Direct sees benefits for consumers and for the bar

By Rory Nunn

Three years after launch, we’re really enjoying life at Clerksroom Direct; our business is growing fast. We believe that our recent success is down to two key things. The first is internal: our approach, our practices and the investments we make. The second is external: the different forces and trends that determine the popularity of direct access among consumers and the Bar itself.

We have worked extremely hard to develop the relationships we have with our contacts in the clerks’ rooms of the country. We are now viewed by many clerks as trusted suppliers of work in much the same way as instructing solicitors. Some chambers now entrust us with the management of their direct access enquiries, sending them to us for administration at the point of receipt before they have had any contact with the client themselves. Working closely with so many different chambers around the country has generated a degree of trust, goodwill and flexibility within our network which is fundamental to our ability to find the right solutions for our clients quickly.

We have also invested heavily in the technology that underpins our service. We’ve redesigned our website to improve our clients’ journey through the enquiry process. We’ve devoted resources to running pay per click advertising campaigns. We’ve launched a free-to-use messaging platform on our homepage which smoothly captures those clients who have a tentative interest in our service, but who do not have the time, inclination or privacy to discuss their requirement. The focus of each of these investments has been to enhance our competitive edge online but, importantly, they have been made alongside a recognition that to neglect more traditional routes to legal services would be unwise. We have no desire to limit our client base to the technologically capable in society, so we are planning to open a serviced drop-in centre for new clients in the Temple, later this year.

The development of our business has taken place alongside increasing recognition of direct access as an opportunity for both consumers and the bar alike. It could be argued that consumers have done far more to develop direct access than the bar itself since 2004, simply by driving relentless enquiry towards an initially cagey, inflexible and reluctant bar. The past 5 years has finally started to see the bar’s initial attitude replaced with a more progressive and commercial enthusiasm for direct access work. The bar’s original concern that accepting direct access instructions would be to bite a feeding hand is now fading, and with good reason; we have an effective reciprocal relationship in place with several solicitors’ firms nationally whereby we recommend each other to clients when it becomes appropriate to do so; doing so offers both of us the opportunity to offer an extension of good service.

We have long wanted to develop opportunity within the SME market and we are now securing volume repeat business from a handful of commercial clients. There are also subtle signs that another kind of consumer might be waking up to the potential of direct access; we have received enquiries from big business including utilities companies, national estate agents and well-known insurance providers.

The past three years have convinced us that for any business to successfully capitalise on the opportunities presented by direct access, it must promote an offering as diverse and multi-faceted as the client base that it seeks to engage. Beyond that, making direct access work requires a lot of thought, perseverance, patience and hard work – just like any other business. We are looking forward to coming of age alongside the direct access market as it grows over the coming years.

Rory Nunn joined Clerksroom Direct in 2017 having cut his teeth clerking at two more traditional sets of chambers. He worked previously as a head-hunter and has been deeply involved in developing direct access practices in the different roles he has held since. Email rory.nunn@clerksroomdirect.com. Twitter @croomdirect.

Delia Venables is joint editor of this Newsletter. Email deliavenables@gmail.com. Twitter @deliavenables.

Image: Archway to Elm Court cc by Ruth Hartnup on Flickr.

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