Barristers Public Access: How successful has it been so far?

Many chambers and individual barristers are represented on my web page . I contacted them recently to ask if they would give me their views on how successful the Public Access scheme has been so far and how they see it developing in the future. Here are their responses, mainly from groups of barristers working together in this area, but also (at the end) two individual barristers who have set up personal web sites accordingly.

One of the messages coming through loud and clear is that ongoing contact with the client is a major enterprise, often very time consuming, and goes far beyond the legal content of a case! Solicitors will probably give a wry smile at this point.

Another view which comes through several of these responses is that it is very helpful for the barrister to work with solicitors, even if direct access was the original aim of the operation; different working patterns are emerging. This also fits in with new and developing ABS structures and indicates that the “bottom up” approach (Public Access) and the “top down” approach (ABS) could well both become part of the long term development of the legal profession.

Overall, there is a generally positive response to Public Access although there are some critical views about the way that the scheme is operated for Criminal Law.

Public Access Bar Association represents the interests of the several hundred 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.

Marc Beaumont, Chairman of PABA writes:

The PA scheme is a substantial success. It has opened up access to justice for those who cannot afford a solicitor. There are many Barristers active in PA work. It was once regarded as fringe work, but is now very much a mainstream part of the service the Bar can offer the public. For clients who want hands-on expertise and progressive Barristers who thrive on hard work, this is a great scheme.

The work is largely low risk for complaints, but this does involve Barristers declining to act for those who really need the help of a solicitor. The scheme is largely suited to individuals, SMEs and professionals. It is very well suited to professional disciplinary defence work, in which I specialise.

The Bar Council’s contribution to the expansion of the scheme is largely exhausted: it successfully primed the pump. Marketing is now for Chambers, rather than the Bar Council. A positive reform, for which I campaigned, was the expansion of the rules to enable Barristers to correspond. This has transformed all forms of Bar work. I have taken several PA cases to the Court of Appeal, to which forum the scheme is particularly well suited.

Marc Beaumont,

1 Gray’s Inn Square Chambers is one of the oldest and largest sets at the Bar. They cover Commercial & Civil, Criminal, Employment, Family Law, Immigration, Inquest & Public Inquiries and Regulatory work. Their barristers undertake Direct Access work across all practice areas.

Soraya Pascoe writes:

Direct access is not for the faint hearted! It does however, form an important, if slowly, increasing portion of my current practice. The benefits include the variety and scope of work it affords as lay clients often find it difficult to obtain affordable representation by solicitors in matters concerning unusual areas of law.

However, lay and indeed some professional clients (I have been instructed by solicitors in their own cases) often find it difficult to grasp the limitations imposed by the rules of direct access and indeed as the rules change from time to time, direct access also poses a challenge to busy barristers already charged with keeping up to date with legislative and procedural changes in their areas of legal practice.

The key to success, in my view, is a greater awareness of direct access amongst the general public. Internet marketing can only fall on informed eyes, i.e. those who are already searching for direct access representation. Whilst work does filter through our chambers’ website, which has a high profile and Google ranking and is clerked in a forward-thinking and pro-active manner, a substantial proportion of my direct access work seems to be through personal or solicitor referrals. A Bar Council publicity campaign to raise public awareness about the scheme could be a starting point at the very least. Also, widening the scope to allow individual barristers or chambers to contract with the Legal Services Commission would be a step in the right direction for a successful direct access scheme.

Soraya Pascoe,

Lincoln House Chambers is one of the leading sets of chambers outside London. They are well placed to offer and support cost effective solutions both nationally and internationally in Business and Commercial Crime, Fraud, Regulatory and Disciplinary, Licensing, Immigration and other specialist areas.

Jonathan Maskew, Chambers Director and also course developer and presenter of “Managing Public Access” for the College of Law, writes:

Direct access is creating opportunities for chambers to forge new initiatives and collaborate with other professional groups, businesses and individuals at a time of rapid change in the legal services environment.

Indeed, for many it appears for many as a “growing area” with an increasing demand. Reducing costs in the present difficult climate is also a key driver. Chambers have lower overheads and by reducing legal costs whilst providing top quality advice and service, they can add value to the whole experience. Furthermore, many chambers are securing repeat work from those instructing them as they seek value for money which ensures that they have greater control of their cases and subsequently the costs.

Barristers offer different strengths and skills to Solicitors and there are a whole range of businesses now instructing specialist counsel directly. Positive involvement in the promotion of specialist legal services directly allows businesses to overcome traditional barriers.

The next generation of instructions will increasingly come from internet generated leads and social networking sites such as LinkedIn and Twitter. These sites have changed the way in which people seek advice or select individuals to assist them with their legal problems and issues. It is becoming a very powerful marketing tool, targeting large volumes of people or specific groups in an effective and cost effective manner.

The opportunities are available for those with the initiative and vision and can often outweigh the challenges of qualifying initial contacts.

Jonathan Maskew .

Red Lion Court is one of the largest chambers in the country. They specialise in crime and regulatory law, representing both prosecution and defence. Their work encompasses Homicide, Rape and other heavy crime, Terrorism, Organised Crime, Proceeds of Crime, Fraud, Financial Regulation, Indirect Tax Tribunals, Health & Safety, Environmental Regulation, Inquests, Inquiries, Disciplinary Tribunals and Courts Martial.

Elliot Perry, Chambers Director, writes:

Direct Access and its co-consort ProcureCo were touted as the saviours of the Criminal Bar. A significant cohort attended expensive Direct Access training courses following the alleged widening of the criteria of criminal cases permitted under direct access. On a closer reading of the Code of Conduct and the Direct Access Rules it became clear that the Bar Council’s interpretation of the new rules and the BSB’s view were worlds apart. Instead of opening up the market the BSB had limited the scope of criminal work that could be undertaken under Direct Access. The BSB and the Bar Council have now accepted that the liberalisation of the market had not been achieved by the amendment to the rules. The BSB were not able to amend the rules without the approval of the LSB and they could not seek that approval without a consultation. Until the rule is changed to allow criminal barristers to accept direct instructions in cases in which legal aid could be granted the scope for direct access work for criminal barristers is very limited ie corporates who are not eligible for legal aid and offences of such a minor nature that they fall below the merits test.

Direct Access itself is a clunky business method. The non-corporate nature of the bar means that the rules do not provide for a mechanism for returning briefs, covering mentions or any other significant delegation of work without a new contract being struck between the lay client and the new barristers. One of the great strengths of the bar has been flexible working. Without a professional client there is little flexibility in the Direct Access marketplace – this works well with advisory work that generally can wait but is a nightmare for a distant mention listed at the last moment when counsel is in a trial elsewhere.

The recent and latest consultations on Entity Regulation suggests that Direct Access will wither on the vine as full litigation services that offer full consumer services find their feet.

Elliot Perry,

Riverview Chambers consists of 44 barristers including some of the UK’s leading QCs, who provide a barrister-led service on a fixed fee basis, working alongside Riverview Solicitors () under the Riverview Law brand. They are based in London and offer business law representation and advice with some additional high end consumer legal services such as divorce. Riverview Law also provides a variety of fixed price annual legal packages for companies as well as legal outsourcing services for major corporations.

Adam Shutkever, Chief Operating Officer, writes:

Ask the “woman on the Clapham omnibus” whether she is aware of the fact that she can instruct members of the Bar directly and chances are that this will be news to her. Why is this?

There are a number of reasons for the relatively slow growth of public access to the English Bar. Principal amongst them is the lack of supporting infrastructure in many sets of Chambers. Sets are structured to manage the workload of independent Barristers but are not, generally, structured to deal with the demands of members of the public.

Furthermore, the scope of the public access regime is inherently limited. Barristers instructed directly cannot “conduct litigation” – Solicitors are still required for the purposes, amongst other things, of exchanging correspondence in relation to litigation.

Finally, and perhaps most controversially, is the notion amongst some members of the Bar that taking instructions directly is “biting the hand that feeds them” in the sense of by-passing Solicitors.

Our view is that clients are often insufficiently aware of the differences between Barristers and Solicitors or, indeed, the reason that they have to instruct them both in certain situations. Clients are generally not interested in the mix of the team that is advising them – what they care about is getting the job done well without having to write a blank cheque.

For this reason we continue to involve Solicitors in our teams, on the basis that we put together the best team for each individual situation. Our teams are Barrister-led, which has characteristics of public access, but the inherent limitations of the regime and the lack of infrastructure in traditional Chambers is addressed by incorporating Solicitors and support staff in what, from the client’s perspective, is a seamless team. No hands are being bitten as nobody is being by-passed – we are simply concentrating on putting the customer first.

Adam Shutkever,

Divorce-StayFriends is a group of direct access barristers from Cobden House Chambers. They are able to give advice in conference, draft documents and represent clients at court hearings. They can also offer alternate dispute resolution in the form of collaboration.

Arlene Milne writes:

Not all areas of law lend themselves easily to the direct access procedure. In family law, care cases for example would hardly ever be acceptable to take on, due to the need for intensive administrative input and liaison with the applicant local authority, for best effect.

Clearly as counsel have a duty to advise clients if they feel they need the services of a solicitor, it is usually in ancillary relief cases that clients benefit from direct access in family law. The web is very useful here in that there is a developing area of online advice which prospective clients can access on a regular basis, for advice on dividing their matrimonial assets. Ancillary relief however is one area where counsel conducting a direct access case would usually welcome some assistance from an instructing solicitor, namely due to the plethora of paperwork which is more often than not brought to the first direct access meeting in two large carrier bags!

Clients are often surprised at the direct access route. It is easier than they thought in most cases and they appreciate that they are able to keep control of the process. Often clients will have been to a solicitor for an initial consultation and then decide that they do not want to pay for a dual service where counsel is instructed on a referral basis. They are often open to the suggestion of using solicitors for at least some of their case, and particularly where extensive litigation is required.

Direct access is not necessarily right for all clients – or all barristers. Sometimes the hardest part is managing clients’ expectations, as they usually want to be led from start to finish, especially if they have used the services of a solicitor previously. Making the client do most of their fact finding and document gathering gives them ownership of the process and makes it easier for direct access counsel. However, there will always be those clients who prefer to be led throughout and who should be advised to divert to a solicitor. There is plenty of room for a collaborative approach between direct access counsel and solicitor.

Arlene Milne,

Immigration Barristers-Online is a company set up by a dedicated group of barristers who aim to provide the best legal advice at an affordable price. Each practitioner has been specifically chosen for the proven quality and skill of their work in Immigration, Asylum and Human Rights law.

Rajesh Rai writes:

We set up Immigration Barristers Online with a view to taking advantage of direct access and the procurement company. We have significant traffic visiting the site but we underestimated the cost and time in administrating these inquiries and converting them into instructions. This initial process requires management skills rather than (simply) legal skills. In addition, trying to explain the limitations of direct access to the potential client seems to put them off approaching the barrister direct. Some of the limitations to direct access mean that it does not become a seamless experience for the client.

All said, we are not put off by direct access or by the procurement company, in fact we embrace this evolution of the Bar and see this to be the future. However, it is not as straightforward as we thought!

Rajesh Rai,

Duncan Richards of Lamb Building is a civil practitioner and represents both claimants and defendants in small, fast and multi-track cases involving disputes based upon the common law of contract and torts as well as in residential and commercial property disputes. Defending and applying for possession orders are covered. He represents clients in cases of personal injury, particularly in road traffic matters.

He writes:

I attended the Public Access course last November in London. I was looking forward to adding a new dimension to my practice. Many of my colleagues, including a former solicitor, have warned me of the dangers of working with lay clients without a solicitor. The most common theme was concern over the increased risk of dealing with complaints and the time involved responding to them. In my short experience I think it is absolutely essential to have a sound system for dealing with clients at the first stage, including, of course, the client care letter. Keeping files and appropriate notes are not familiar disciplines but this is the best indemnity you can have in my view. I hold initial conferences with all of my potential clients before accepting any work.

My practice has changed a lot in the last year. I am doing more Public Access work and anticipate an upturn in the future. My Chambers has been supportive of this. This comes at a time when other traditional sources of work have been contracting. I also consider that the scheme provides a positive route to forming meaningful relationships with solicitors.

Many of my cases have grown to the point where I have referred the case to a solicitor and so I now am forming tangible links with the other side of the profession. My overall view of the scheme is a positive one and I would like to see the Bar Council promote it further.

Duncan Richards,

Stephen Harvey QC of 1 Paper Buildings is listed in the Chambers UK Guide as a Leading Silk and he has appeared in many high profile and complex cases. He came to the Bar after careers in engineering, the public service and the financial world. He offers advice and representation to individuals, businesses, partnerships, corporates and others.

He writes:

On the criminal front, the prevention of accepting a DPA client paying privately (but who may qualify for legal aid funding) is justified by the BSB on the basis that the situation presents a “regulatory risk”, ie that the DPA barrister failed to properly explain the possible eligibility for legal aid. This would be more accurately characterised as a “negligent failure”.

Assessing legal aid eligibility could (even if governed by regulation) be done through a chambers computer system appropriately programmed or by a system set up by the Bar which could handle all such assessments.

At present, I have had to direct prospective clients through solicitors and the effect is that, if qualifying for legal aid, they have to make a monthly contribution until the case is disposed of. This commitment might extend for many months after conviction (eg if POCA proceedings are taken). A number of solicitors have told me under this system, and given the likely costs, clients often opt to negotiate a private fixed (and certain) fee for both the solicitor and counsel. The consequence is that two sets of fees are incurred.

The present restrictions, therefore, denies the lay client a real and informed choice of representative unless he is prepared to pay twice. This is a serious limitation on the client’s access to the Bars services and cannot be in the public interest.

As far as the BSB’s second concern, namely that DPA barristers are not likely be able to direct proper investigations in preparing a client’s case, the services of private investigators are as available to the lay client (appropriately directed by the barrister) as they are to a solicitor. There is also, of course, the continuing obligation to advise the moment that a solicitor’s services are thought necessary.

Stephen Harvey,