Part 3 B2, B3, B7, B9, C1, C2

Question 1

Part 3 - B. Scope of Practice
Part 3 - B2. Provision of reserved legal activities and of legal services
rS16

Answer 1

You may only carry on reserved legal activities or supply other legal services in the following capacities:
.1 as a self-employed barrister, subject to the limitations imposed by Section 3.B3;
.2 as a BSB entity subject to the limitations imposed by Section 3.B4;
.3 as a manager of a BSB entity or as an employed barrister (BSB entity), subject to the limitations imposed by Section 3.B5;
.4 as a manager of an authorised (non-BSB) body or as an employed barrister (authorised non-BSB body), subject to the limitations imposed by Section 3.B6;
.5 as an employed barrister (non authorised body), subject to the limitations imposed by Section 3.B7; or
.6 as a registered European lawyer in any of the above capacities, in which case the equivalent limitations that would have applied if you were practising as a barrister shall apply to your practice as a registered European lawyer.

Question 2

RS17

Answer 2

Where you carry on reserved legal activities in one of the capacities set out at Rule rS16, so as to be subject to regulation by the Bar Standards Board in respect of those reserved legal activities, any other legal services you may supply in that same capacity will also be subject to regulation by the Bar Standards Board, even if unreserved.

Question 3

RS18

Answer 3

You may only practise or be involved with the supply of legal services (whether reserved legal activities or otherwise) in more than one of the capacities listed in Rule rS16 after:
.1 having obtained an amended practising certificate from the Bar Standards Board which recognises the capacities in respect of which you are intending to practise; and
.2 having agreed with each employer or regulated entity with which you are involved a protocol that enables you to avoid or resolve any conflict of interests or duties arising from your practice and/or involvement in those capacities, and provided always that you do not work in more than one capacity in relation to the same case or issue for the same client, at the same time.

Question 4

RS19

Answer 4

If you are a pupil with a provisional practising certificate, you may only supply legal services to the public or exercise any right which you have by reason of being a barrister, if you have the permission of your pupil supervisor, or head of chambers or HOLP (as appropriate).

Question 5

RS20

Answer 5

Subject to Rule rS21, if you are a barrister of less than three years’ standing , you may:
.1 only supply legal services to the public or exercise any right of audience by virtue of authorisation by the Bar Standards Board; or
.2 only conduct litigation by virtue of authorisation by the Bar Standards Board, if your principal place of practice (or if you are practising in a dual capacity, each of your principal places of practice) is either:
.a a chambers or an annex of chambers which is also the principal place of practice of a relevant qualified person who is readily available to provide guidance to you; or
.b an office of an organisation of which an employee, partner, manager or director is a relevant qualified person who is readily available to provide guidance to you.

Question 6

RS21

Answer 6

If you are an employed barrister (non-authorised body) and you are only exercising a right of audience or conducting litigation for those persons listed at Rule rS39.1 to rS39.6, then the place of practice from which you perform such duties is only required to be an office of an organisation of which an employee, partner, manager or director is a relevant qualified person who is readily available to provide guidance to you if you are of less than one year’s standing.

Question 7

RS22

Answer 7

In Rule rS20 and Rule rS21 above, the references to “qualified person” mean the following:
Supply of legal services to the public – qualified person
.1 Where you are a barrister intending to supply legal services to the public, a person shall be a qualified person for the purpose of Rule rS20 if they:
.a have been entitled to practise and have practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Qualification Rules) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and
.b for the previous two years have made such practice their primary occupation; and
.c are not acting as a qualified person in relation to more than two other people; and
.d has not been designated by the Bar Standards Board as unsuitable to be a qualified person.
The exercise of a right of audience – qualified person
.2 Where:
.a you are a barrister exercising a right of audience in England and Wales, a person is a qualified person for the purpose of Rule rS20 if they:
.i have been entitled to practise and have practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Qualification Rules) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and
.ii for the previous two years:
(1) have made such practice their primary occupation; and
(2) have been entitled to exercise a right of audience before every court in relation to all proceedings; and
.iii are not acting as a qualified person in relation to more than two other people; and
.iv have not been designated by the Bar Standards Board as unsuitable to be a qualified person.
The exercise of a right to conduct litigation – qualified person
.3 Where:
.a you are a barrister exercising a right to conduct litigation in England and Wales, a person is a qualified person for the purpose of Rule rS20 if they:
.i have been entitled to practise and have practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Qualification Rules) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and
.ii for the previous two years have made such practice their primary occupation; and
.iii are entitled to conduct litigation before every court in relation to all proceedings; and
.iv are not acting as a qualified person in relation to more than two other people; and
.v have not been designated by the Bar Standards Board as unsuitable to be a qualified person.

Question 8

Guidance to Rules S20-S22
gS2

Answer 8

If you are a practising barrister of less than three years’ standing and you are authorised to conduct litigation, you will need to work with a qualified person who is authorised to do litigation as well as with someone who meets the criteria for being a qualified person for the purpose of providing services to the public and exercising rights of audience. This may be, but is not necessarily, the same person.

Question 9

Part 3 - B3. Scope of practice as a self-employed barrister (Rules S23-S24) Rules
rS23

Answer 9

Rules rS24 and rS25 below apply to you where you are acting in your capacity as a self-employed barrister, whether or not you are acting for a fee.

Question 10

RS24

Answer 10

You may only supply legal services if you are appointed or instructed by the court or instructed:
.1 by a professional client (who may be an employee of the client); or
.2 by a licensed access client, in which case you must comply with the licensed access rules; or
.3 by or on behalf of any other client, provided that:
.a the matter is public access instructions and:
.i you are entitled to provide public access work and the instructions are relevant to such entitlement; and
.ii you have notified the Bar Standards Board that you are willing to accept instructions from lay clients; and
.iii you comply with the public access rules; or
.b the matter relates to the conduct of litigation and
.i you have a litigation extension to your practising certificate; and
.ii you have notified the Bar Standards Board that you are willing to accept instructions from lay clients.

Question 11

Guidance to Rule S24
gS3

Answer 11

References to professional client in Rule rS24.1 include foreign lawyers and references to client in Rule rS24.3 include foreign clients.

Question 12

GS4

Answer 12

If you are instructed by a foreign lawyer to provide advocacy services in relation to court proceedings in England and Wales, you should advise the foreign lawyer of any limitation on the services you can provide. In particular, if conduct of litigation will be required, and you are not authorised to conduct litigation or have not been instructed to do so, you should advise the foreign lawyer to take appropriate steps to instruct a person authorised to conduct litigation and, if requested, assist the foreign lawyer to do so. If it appears to you that the foreign lawyer is not taking reasonable steps to instruct someone authorised to conduct litigation, then you should consider whether to return your instructions under rules C25 and C26.

Question 13

Part 3 - B3. Scope of practice as a self-employed barrister (Rules S25-S26)
rS25

Answer 13

Subject to Rule rS26, you must not in the course of your practice undertake the management, administration or general conduct of a client’s affairs.

Question 14

RS26

Answer 14

Nothing in Rule rS25 prevents you from undertaking the management, administration or general conduct of a client’s affairs where such work is foreign work performed by you at or from an office outside England and Wales which you have established or joined primarily for the purposes of carrying out that particular foreign work or foreign work in general.

Question 15

Part 3 - B7. Scope of practice as an employed barrister (non authorised body) Rules
rS38

Answer 15

Rule rS39 applies to you where you are acting in your capacity as an employed barrister (non authorised body).

Question 16

rS39

Answer 16

Subject to s. 15(4) of the Legal Services Act 2007, you may only supply legal services to the following persons:
.1 your employer;
.2 any employee, director or company secretary of your employer in a matter arising out of or relating to that person’s employment;
.3 if your employer is a public authority (including the Crown or a Government department or agency or a local authority), another public authority on behalf of which your employer has made arrangements under statute or otherwise to supply any legal services or to perform any of that other public authority’s functions as agent or otherwise;
.4 if you are employed by or in a Government department or agency, any Minister or Officer of the Crown;
.5 if you are employed by a trade association, any individual member of the association;
.6 if you are, or are performing the functions of, a Justices’ clerk , the Justices whom you serve;
.7 if you are employed by the Legal Aid Agency, members of the public;
.8 if you are employed by or at a Legal Advice Centre, clients of the Legal Advice Centre;
.9 if you supply legal services free of charge, members of the public; or
.10 if your employer is a foreign lawyer and the legal services consist of foreign work, any client of your employer.

Question 17

Guidance to Rule S39
gS8A

Answer 17

If you provide services through a non-authorised body (A) whose purpose is to facilitate the provision by you of in-house legal services to another non-authorised body (B) then for the purposes of rS39 you will be treated as if you are employed by B and you should comply with your duties under this Handbook as if you are employed by B.

Question 18

gS8B

Answer 18

If you provide services through a non-authorised body (C) whose purpose is to facilitate the provision by you of legal services to an authorised body (D) or clients of D (where those services are provided by D and regulated by D’s Approved Regulator) then you will be treated as if you are employed by D and you should comply with your duties under this Handbook as if you are employed by D.

Question 19

gS8C

Answer 19

Reserved legal activities may only be provided in a way that is permitted by s15 of the Legal Services Act 2007. S15 details when an employer needs to be authorised to carry on reserved legal activities and prevents those activities from being provided to the public, or a section of the public, by a non-authorised body.

Question 20

Part 3 - B9. Legal Advice Centres Rules
rS41

Answer 20

You may supply legal services at a Legal Advice Centre on a voluntary or part time basis and, if you do so, you will be treated for the purposes of this Handbook as if you were employed by the Legal Advice Centre.

Question 21

RS42

Answer 21

If you supply legal services at a Legal Advice Centre to clients of a Legal Advice Centre in accordance with Rule rS41:
.1 you must not in any circumstances receive either directly or indirectly any fee or reward for the supply of any legal services to any client of the LegalAdvice Centre other than a salary paid by the Legal Advice Centre;
.2 you must ensure that any fees in respect of legal services supplied by you to any client of the Legal Advice Centre accrue and are paid to the Legal Advice Centre, or to the Access to Justice Foundation or other such charity as prescribed by order made by the Lord Chancellor under s.194(8) of the
Legal Services Act 2007; and
.3 you must not have any financial interest in the Legal Advice Centre.

Question 22

Guidance to Rules S41-S42
gS9

Answer 22

You may provide legal services at a Legal Advice Centre on an unpaid basis irrespective of the capacity in which you normally work.

Question 23

GS10

Answer 23

If you are a self-employed barrister, you do not need to inform the Bar Standards Board that you are also working for a Legal Advice Centre.

Question 24

GS11

Answer 24

Transitional arrangements under the LSA allow Legal Advice Centres to provide reserved legal activities without being authorised. When this transitional period comes to an end, the Rules relating to providing services at Legal Advice Centres will be reviewed.

Question 25

Part 3 - C. Practising Certificate Rules
Part 3 - C1. Eligibility for practising certificates and litigation extensions Rules
rS44

Answer 25

In this Section 3.C, references to “you” and “your” are references to barristers and registered European lawyers who are intending to apply for authorisation to practise as a barrister or a registered European lawyer (as the case may be) or who are otherwise intending to apply for a litigation extension to their existing practising certificate.

Question 26

RS45

Answer 26

You are eligible for a practising certificate if:
.1 you are a barrister or registered European lawyer and you are not currently suspended from practice and have not been disbarred; and
.2 you meet the requirements of Rules rS46.1, rS46.2, rS46.3 or rS46.4; and
.3 either:
.a within the last 5 years either (i) you have held a practising certificate; or (ii) you have satisfactorily completed (or have been exempted from the requirement to complete) the pupillage component of training; or
.b if not, you have complied with such training requirements as may be imposed by the Bar Standards Board.

Question 27

RS46

Answer 27

You are eligible for:
.1 a full practising certificate if either:
.a you have satisfactorily completed pupillage; or
.b you have been exempted from the requirement to complete pupillage; or
.c on 30 July 2000, you were entitled to exercise full rights of audience by reason of being a barrister; or
.d you were called to the Bar before 1 January 2002 and:
.i you notified the Bar Council that you wished to exercise a right of audience before every court and in relation to all proceedings; and
.ii you have complied with such training requirements as the Bar Council or the Bar Standards Board may require or you have been informed by the Bar Council or the Bar Standards Board that you do not need to comply with any such further requirements; in each case, before 31 March 2012;
.2 a provisional practising certificate if you have satisfactorily completed (or have been exempted from the requirement to complete) a period of pupillage satisfactory to the BSB for the purposes of Rule Q4 and at the time when you apply for a practising certificate you are registered as a Pupil;
.3 a limited practising certificate if you were called to the Bar before 1 January 2002 but you are not otherwise eligible for a full practising certificate in accordance with Rule rS46.1 above; or
.4 a registered European lawyer’s practising certificate if you are a registered European lawyer.

Question 28

RS47

Answer 28

You are eligible for a litigation extension:
.1 where you have or are due to be granted a practising certificate (other than a provisional practising certificate); and
.2 where you are:
.a more than three years’ standing ; or
.b less than three years’ standing , but your principal place of practice (or if you are practising in a dual capacity, each of your principal places of practice) is either:
.i a chambers or an annex of chambers which is also the principal place of practice of a qualified person (as that term is defined in Rule rS22.3) who is readily available to provide guidance to you; or
.ii an office of an organisation of which an employee, partner, manager or director is a qualified person (as that term is defined in Rule rS22.3) who is readily available to provide guidance to you;
.3 you have the relevant administrative systems in place to be able to provide legal services direct to clients and to administer the conduct of litigation;
and
.4 you have the procedural knowledge to enable you to conduct litigation competently.

Question 29

Guidance to Rule S47.3
gS12

Answer 29

You should refer to the more detailed guidance published by the Bar Standards Board from time to time which can be found on its website.- This provides more information about the evidence you may be asked for to show that you have procedural knowledge to enable you to conduct litigation competently

Question 30

Part 3 - C2. Applications for practising certificates and litigation extensions by barristers and registered European lawyers
rS48

Answer 30

You may apply for a practising certificate by:
.1 completing the relevant application form (in such form as may be designated by the Bar Standards Board) and submitting it to the Bar Standards Board; and
.2 submitting such information in support of the application as may be prescribed by the Bar Standards Board; and
.3 paying (or undertaking to pay in a manner determined by the Bar Council) the appropriate practising certificate fee to the Bar Council in the amount determined in accordance with Rule rS50 (subject to any reduction pursuant to Rule rS53).

Question 31

RS49

Answer 31

You may apply for a litigation extension to a practising certificate (other than a provisional practising certificate) by:
.1 completing the relevant application form supplied by the Bar Standards Board and submitting it to the Bar Standards Board; and
.2 confirming that you meet the relevant requirements of Rule rS47.1;
.3 paying (or undertaking to pay in a manner determined by the Bar Standards Board) the application fee (if any) and the litigation extension fee (if any) to the Bar Standards Board;
.4 confirming, in such form as the Bar Standards Board may require from time to time, that you have the relevant administrative systems in place to be able to provide legal services direct to clients and to administer the conduct of litigation in accordance with Rule rS47.3; and
.5 confirming, in such form as the Bar Standards Board may require from time to time, that you have the procedural knowledge to enable you to conduct litigation competently in accordance with Rule rS47.4.

Question 32

RS50

Answer 32

An application will only have been made under either Rule rS48 or rS49 once the Bar Standards Board has received, in respect of the relevant application, the application form in full, together with the application fee, the litigation extension fee (if any, or an undertaking to pay such a fee in a manner determined by the Bar Standards Board), all the information required in support of the application, confirmation from you, in the form of a declaration, that the information contained in, or submitted in support of, the application is full and accurate, and (in the case of Rule S48) once the Bar Council has received the practising certificate fee (if any, or an undertaking to pay such a fee in a manner determined by the Bar Council).

Question 33

RS51

Answer 33

On receipt of the application, the Bar Standards Board may require, from you or a third party (including, for the avoidance of doubt, any BSB entity), such additional information, documents or references as it considers appropriate to the consideration of your application.

Question 34

RS52

Answer 34

You are personally responsible for the contents of your application and any information submitted to the Bar Standards Board by you or on your behalf and you must not submit (or cause or permit to be submitted on your behalf) information to the Bar Standards Board which you do not believe is full and accurate.

Question 35

RS53

Answer 35

When applying for a practising certificate you may apply to the Bar Standards Board for a reduction in the practising certificate fee payable by you if your gross fee income or salary is less than such amount as the Bar Council may decide from time to time. Such an application must be submitted by completing the form supplied for that purpose by the Bar Standards Board.