Chapter 10: Public Access Work and Licensed Access Work

Question 1

1 Public Access Work

Answer 1

(a) Public access work is work undertaken by a barrister on behalf of a lay client who has NOT instructed a solicitor or other (legal) professional client.

Question 2

1 Public Access Work

(b) Examples of the types of work that may be done in a public access case are:

Answer 2

(i) Advocacy;

(ii) Drafting documents;

(iii) Advising in conference;

(iv) Representation in ADR proceedings (e.g. mediation or arbitration)

(v) Negotiating on behalf of the client;

(vi) Investigating and collecting evidence (but see 3.2. et seq. in Part 1 of the Revision Guide)

(vii) Corresponding on behalf of the client. On the condition that:

(1) Is it in the client’s best interests to do so; and

(2) You have in place adequate systems, experience and resources in place for managing correspondence.

Question 3

2 Rules about accepting a public access case:

(a) Subject to the requirements below a barrister may accept public access instructions in any area of practice in which he is ….

Answer 3

SUFFICIENTLY EXPERIENCED AND COMPETENT.

Question 4

(b) Before accepting any public access work a barrister MUST have:

Answer 4

(i) A full practising certificate (i.e. she must have successfully completed pupillage;

(ii) Completed the appropriate public access training;

(iii) Registered with the BSB as a public access practitioner.

(iv) Taken all reasonably necessary steps to determine whether it would be in the client’s best interests, or the interests of justice, for the client to instruct a solicitor;

(v) Taken all reasonably necessary steps to ensure that the client is able to make an informed choice about whether to apply for legal aid or to proceed as a public access client.

Question 5

(c) The duty NOT to WITHOLD your services applies to a public access case in exactly the same way as it does to any other case.

Question 6

Does the cab rank rule apply to public access cases?

Answer 6

NO!

(d) The ‘cab rank’ rule does NOT apply to public access cases
(i) This is because you are not being instructed by a professional client,

Question 7

(e) You must NOT REFUSE to take on a public access case for improper reasons, which include:

Answer 7

(i) That the nature of the case is objectionable to you or the public;

(ii) That the conduct, opinions, or beliefs of the client are unacceptable to you or the public;

(iii) Any ground relating to the source of any financial support which may properly be given to the client for the proceedings.

Question 8

3 Duty to refuse instructions or withdraw from a public access case

(a) can a barrister accept a public access case if it would be in the best interests of the client or in the interests of justice for the client to instruct a solicitor?

Answer 8

NO!
(a) A barrister may NOT accept a public access case if it would be in the best interests of the client or in the interests of justice for the client to instruct a solicitor.

Question 9

3 Duty to refuse instructions or withdraw from a public access case

(b) The duty not to accept public access work is an ongoing duty that continues throughout the case, Therefore if, at any time, the barrister forms the view that it is in the client’s best interests or in the interests of justice for the client to instruct a solicitor the barrister MUST:

Answer 9

(i) Inform the client of this view; and

(ii) Cease to act in the case unless the client instructs a solicitor.

Question 10

(c) If the barrister has been instructed by an intermediary, he must give the same information to the intermediary as well as to the client.

Question 11

(d) Where you are required to withdraw from a public access case in circumstances which may prejudice the client’s position in the proceedings you should provide such assistance to the client as is proper to protect them, including:

Answer 11

(i) Applying to the court for an adjournment, if you have had to withdraw during a hearing;

(ii) Drafting a letter for the client to send to the court and other side seeking an adjournment of an impending hearing;

(iii) Providing a supporting letter for the client explaining that you have had to withdraw for professional reasons and, without breaching confidentiality, explaining those reasons;

(iv) Where the matter is urgent, contacting a solicitor who may be willing to take on the client’s case.

Question 12

4 Conducting Litigation in a Public Access Case

(a) As a public access barrister you MAY NOT conduct litigation UNLESS you are duly authorised by the BSB. For these purposes conducting litigation includes:

Answer 12

(i) Issuing proceedings or applications;
(ii) Acknowledging service of proceedings;
(iii) Giving your address as the address for service;
(iv) Filing documents at court, or serving documents on another party; and
(v) Issuing notices of appeal.

Question 13

(a) YOU MAY ADVISE clients how to take the steps listed in paragraph (a) BUT THEY MUST COMPLETE THEM as litigants in person.

Answer 13

If they are unable to complete these steps, then the barrister MUST consider whether it would be in the client’s best interests to instruct a solicitor rather than continue with direct access instructions. Barristers should be particularly careful in this regard when dealing with VULNERABLE CLIENTS.

Question 14

5 Duties upon accepting a Public Access case
(a) When a barrister accepts public access instructions he must write to the public access client clearly setting out the following:

Answer 14

(i) The work which the barrister has agreed to perform;

(ii) The fact that the barrister may be prevented from completing the work by reason of his professional duties or conflicting professional obligations, and what the client can expect in such circumstances;

(iii) The fees, or the basis on which fees will be charged, for the work;

(iv) The barrister’s contact details;

(v) Information about the barrister’s complaints procedure;

(vi) The fact that the barrister is self-employed and not a member of a firm;

(vii) The fact that the barrister will be subject to Parts 2 and 3 (Rules on Public Access and Scope of Practice Rules) of the BSB Handbook when carrying out the work;

(viii) Unless authorised to conduct litigation by the BSB, the fact that the barrister cannot be expected to perform the functions of a solicitor, in particular in relation to:

(1) Limitation; and

(2) Disclosure;

(ix) In any case where the barrister is instructed by an intermediary:

(1) The fact that the barrister is independent of and has no liability for the intermediary; and

(2) The fact that the intermediary is the agent of the lay client and not the barrister.

(b) Except in exceptional circumstances the barrister will have complied with his duties under (a) if he sends the model letter for public access clients provided on the BSB website.

Question 15

6 Record Keeping and Retention of Documents

(a) A barrister who accepts public access instructions must keep a record of the case which includes:

Answer 15

(i) Name of the client;

(ii) Name of the case;

(iii) Any required time limits that the client has;

(iv) The agreed fee.

(v) The dates of:

(1) receipt and acceptance of the instructions;
(2) receipt of subsequent instructions;
(3) despatch of advices and other written work;
(4) conferences and telephone conferences;

Question 16

6 Record Keeping and Retention of Documents
(b) A barrister in a public access case must retain, or take reasonable steps to ensure that the client retains, for at least 7 years after the last item of work done, the following:

Answer 16

(i) Copies of all instructions;
(ii) Copies of all advices and documents drafted (or approved);
(iii) The originals, copies or a list of all documents enclosed with any instructions;
(iv) Notes of all advice given in conference or over the telephone.

Question 17

6 Record Keeping and Retention of Documents

(a) A barrister in a public access case may undertake correspondence where it is ancillary to permitted work.

Question 18

6 Record Keeping and Retention of Documents

(b) Except where otherwise agreed a barrister:

Answer 18

(i) SHALL be entitled to copy and retain all documents received from the client;
(ii) SHALL return all documents received from his lay client on demand, whether or not payment has been made by the client for work done;
(iii) SHALL NOT be required to deliver to the client any documents drafted by the barrister, before the client has paid for all work done by the barrister;

(iv) MAY, in a civil case, take a proof of evidence from his client in the matter.

Question 19

1 Barristers with less than 3 years’ standing
(a) A barrister with less than 3 years’ standing who has completed the necessary training must:

Answer 19

(i) Have a barrister who is SUITABLY QUALIFIED) AND is REGISTERED as a public access practitioner with the Bar Council readily available to provide guidance;

(ii) Maintain a log of public access cases they have dealt with, including any issues or problems that have arisen.

(iii) Make the log available to the BSB on request;

(iv) Where appropriate seek feedback from their public access clients

Question 20

8 Supervising Immigration Advisers

Answer 20

(a) The BSB published revised Guidance for Barristers Supervising Immigration Advisers in October 2018. What follows is a summary of that guidance.

(i) Where you are acting as an immigration supervisor under the Immigration and Asylum Act 1999 and providing legal services to an immigration adviser or intermediary then you will be deemed by the BSB to have a direct link with the lay client. This means you will be PERSONALLY REPSONSIBLE for any immigration work undertaken by the intermediary.

(ii) Barristers entering into these types of arrangements are reminded that the PUBLIC ACCESS rules will apply when providing legal services to the immigration adviser or other intermediary, or to the immigration client.

(iii) You should therefore NOT act as an immigration supervisor if you are not QUALIFIED and REGISTERED as a public access practitioner.

(iv) You should NOT act as an immigration supervisor in relation to any matter for which you do not have the necessary relevant
experience.

Question 21

9 Licensed Access Work

(a) Licensed access work was originally intended to allow professional firms such as engineers and architects to instruct barristers directly, without the need to instruct a solicitor first. It was subsequently
expanded to allow any person who obtains a license from the BSB to so instruct a barrister.

Answer 21

(a) A self-employed barrister may accept instructions from a licensed access client whether that client is acting for himself or another.
(b) The BSB will issue a license to an applicant where it is satisfied that the applicant is a proper person to hold such a license.
(c) A barrister is only entitled to accept instructions from a licensed access client if at the time of giving instructions the client:
(i) Is identified; and
(ii) Sends the barrister a copy of the license issued by the BSB.

Question 22

10 Circumstances where you MUST NOT accept or MUST return instructions in a licensed access case

Answer 22

(a) A barrister must NOT accept instructions in a licensed access case:
(i) UNLESS the barrister (and his chambers) are able to provide the services required;
(ii) IF the barrister considers that it is IN THE LAY CLIENT’S BEST INTERESTS, or in the interests of justice, THAT A SOLICITOR or other authorised litigator BE INSTRUCTED either together with, or in place of, the barrister.
(b) The duty above is an ongoing duty which applies to licensed access cases as it does to public access cases and similarly requires the barrister to advise the client and withdraw unless the client instructs a solicitor

Question 23

11 Acceptance of Licensed Access Instructions

A barrister may accept instructions from a licensed access client on:

Answer 23

(i) Standard terms previously agreed in writing with the licensed access client;
(ii) Individually negotiated terms

Question 24

11 Acceptance of Licensed Access Instructions

(b) If instructions are accepted on standard terms,

Answer 24

(i) the barrister must send to the client a statement in writing that the instructions have been accepted on the relevant terms and
(ii) the barrister must keep a copy of the agreement in writing with the licensed access client setting out the terms agreed and the basis on which the barrister is to be paid

Question 25

11 Acceptance of Licensed Access Instructions

(c) If the a barrister accepts licensed access instructions on any other terms, he must send to the client a copy of the agreement in writing setting out the terms upon which he has agreed to do the work and the basis upon which he is to be paid.

Question 26

11 Acceptance of Licensed Access Instructions

(d) In addition the barrister must make the client aware of the following (either as part of standard terms or specifically):

Answer 26

(i) The circumstances in which he cannot accept;

(i) The fact that the client may be required to retain a solicitor at short notice and possibly during the case;

(ii) That the barrister CANNOT be expected to perform the functions of a solicitor and in particular to fulfil any obligations arising out of the conduct of litigation.

Question 27

12 Duty to report non-compliance to the BSB

(a) If the barrister considers that there are substantial grounds for believing that the licensed access client has in some significant respect failed to comply with either:

Answer 27

(i) The terms of the license; or (where applicable)
(ii) The terms of the Licensed Access Terms of Work the barrister must report the facts to the BSB.

Question 28

13 Record Keeping and Retention of Documents

Answer 28

(a) The barrister must retain the same documents as for public access for the same minimum seven year period.