• Public Access Guidance for Barristers (Oct 2019)

Question 1

Before you may accept Public Access instructions, you must:

Answer 1

1. Hold a full practising certificate, if you have less than three years’ standing you must have a qualified person readily available to you to provide guidance if necessary
2. Have undertaken and completed a BSB approved training course
3. Notify the Bar Council of your intention to undertake such work; and
4. Have insurance cover required. BMIF cover satisfies this requirement

Question 2

If less than 3 years standing:

You MUST

Answer 2

have a qualified persona available to provide guidance

Question 3

Qualified person:

=

Answer 3

1. Entitled to practise and have practised as a barrister or have been authorised to practise by another approved regulator for a period of at least 6 years in the previous 8 years;
2. Made such practice their primary occupation for the previous 2 years; and
3. Been entitled to exercise a right of audience before every court in relation to all proceedings.

Question 4

You cannot accept instructions if you lack

Answer 4

suffieicnt experience or competence to handle the matter. In Public Access case, you are dealing with a client which may be more difficult or demanding than acting for a professional client and you must be able to handle those demands.

Question 5

A barrister does NOT have the right to

Answer 5

conduct litigation unless authorised by the BSB.

Question 6

Conduct of litigation is:

Answer 6

1. The issuing of proceedings before any court
2. Commencement, prosecution and defence of such proceedings; and
3. Performance of any ancillary functions in relation to such proceedings.

Question 7

you should refuse to do these if you are not authorsed to conduct litigiation:

Answer 7

1. Issuing proceedings or applications
2. Acknowledging service of proceedings
3. Giving your address as the address for service
4. Filing documents at court or serving documents on another party; and
5. Issuing notices of appeal

You can advise your client on the procedures, but the steps in question MUST be taken by the client as a litigant in person if you are not authorised to do them.

Question 8

The following is permissible if not authorised to conduct litigation:

Answer 8

1. Lodging documents for hearings
2. Skeleton arguments
3. Covering applications to fix trial dates
4. Court orders
5. Discharging a duty or a courtesy to the court
6. Signing a Statement of Truth

Question 9

You CANNOT receive or handle client money, except

Answer 9

as payment for fees. This means a barrister cannot make disbursements on behalf of a client, e.g. by paying court fees or witnesses’ expenses.

Question 10

INFORMATION - PUBLIC FUNDING

A barrister who accepts Public Access, MUST take steps

Answer 10

take steps reasonably necessary to ensure the client is able to make an informed decision about whether to apply for legal aid or whether to proceed with Public Access.

If client qualifies for legal aid it may be in their best interests to instruct a solicitor on a public funding basis.

Question 11

Best interests

You cannot accept Public Access if you think it is in the best interests of your client or in the interests of justice for the client to instruct a solicitor or other professional client. This is a continuing duty. This will depend on

Answer 11

the complexity, capability of client, and whether you are authorised to conduct litigation.

If you recommend a solicitor is instructed and that advice is not heeded, you will have to withdraw. Barristers MUST consider every point at which they are instructed as soon as it is clear, this is important for limitation.

Question 12

INITIAL CONTACT WITH CLIENT

• Initial contact by telephone/email or receipt of written instructions in chambers. You are required to keep:

Answer 12

1. a record of the date instructions were received;
2. Name of client
3. Name of the case; and
4. Any requirement of the client as to time limitation
5. Also need to send a client care letter so need the client’s address.

It is open to you to accept instructions for the limited purpose of reading papers and advising whether you are able to perform substantive professional work; in such a situation it is open to you to make an arrangement that you are paid a fee for doing so. If you decide to charge for the preliminary meeting, a client care letter should be sent to the client in the usual way, setting out the charge for the advice and any other work done and making it clear that you do not agree to do more in the first instance than assess whether or not you can assist the client.

Question 13

The basis of the agreement and the client care letter 28. The agreement between barrister and client is contractual. This means that:

Answer 13

• the barrister is bound by the agreement and may be liable in contract for failure to perform;
• it should be clear what is to be done under the contract, the charging rate and any other special terms that may be agreed (note your general duties under rC22 in addition to the Public Access Rules); and
• a barrister will be able to sue for fees.

Question 14

At the outset of the agreement, a Public Access barrister msut warn a client that:

Answer 14

1. he is an independent practitioner; and
2. there may be occasions where a clash of professional commitments prevents you from carrying out an instruction.

Question 15

NON-DISCRIMINATION:

You must not withhold your services or permit your services to be withheld:

Answer 15

• on the ground that the nature of the case is objectionable to you or to any section of the public;
• on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public; or
• on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question.

Question 16

Does the CAB rank rule apply to Public Access cases?

Answer 16

The CAB Rank rule does not apply to Public Access cases

BUT

whilst the ‘cab rank’ rule does not apply to Public Access cases, you must not discriminate in the way you accept, refuse or carry out Public Access instructions. . It would be prudent for a barrister refusing a case to make a brief note of the reasons for so doing in case this is questioned in future.

Question 17

Withdrawal from case:

If given advice that solicitor is required, and then one is instructed:

Answer 17

then you will be able to continue to act.

Question 18

Withdrawal from case:

In a Public Access case, the issue of withdrawing from a case will only arise once

Answer 18

you have accepted the instruction. That will usually be when the client care letter is sent. Unless your decision to withdraw is justified by your obligations under the Handbook you are likely to place yourself in breach of your contract with the client.

Question 19

The fact your client rejects your advice on tactics or settlement will not justify you in withdrawing from your case, nor if a client raises a complaint about you. But

what should happen?

Answer 19

full attendance notes should be made.

Question 20

Where you consider that you are required to withdraw and it appears that, by reason of the proximity of a hearing, a client may have difficulty finding another lawyer to take on the case in the time available, you should provide such assistance as is proper to protect the client’s position. This can include:

Answer 20

1. applying to the court for an adjournment if it is necessary to withdraw during the course of the hearing;
2. drafting letters for the client to send to the court and the other side seeking an adjournment;
3. providing supporting letters for the client explaining that, for professional reasons, you have had to withdraw and, so far as this is possible without breaching confidentiality or prejudicing the client’s position, explaining the reasons;
4. where the matter is urgent or it is otherwise appropriate, contacting solicitors or other suitable intermediaries who may be willing to take on the client’s case

Question 21

Is a fixed fee paid in advance client money?

Answer 21

NO

Question 22

What must happen for a fixed feed paid not to be client money?

Answer 22

If you agree with a client, who can reasonably be expected to understand the implications of such an agreement, that

1. your fee for any work will be charged according to the time spent on it, but
2. you will be paid a fixed fee in advance for it, and
3. when the work has been done, you will pay the client any difference between that fixed fee and the fee which has actually been earned, and
4. you will not hold the difference between the fixed fee and the fee which has been earned on trust for the client, that difference will not be client money.

Such fees may be considered as client money if you cannot demonstrate that the agreement was made in advance and on clear terms. You should also consider carefully whether such an arrangement is in the client’s interest and that the client fully understands the implications.

Question 23

C) Withholding paperwork until paid

What is the position?

Answer 23

Barristers may withhold paperwork until fees have been received. However, it should be made clear to the client at the time of instruction that this will be the arrangement. It should be expressly stated in the client care letter.

Question 24

In public access, can you get disbursements?

Answer 24

You may agree with your client that you are entitled to charge disbursements, such as travel and accommodation expenses and photocopying. This can include charging for the work of a clerk, administrative assistant or paralegal. This must be agreed in advance and therefore should be included in the client care letter.

Question 25

RECORD KEEPING

n the absence of a solicitor it will be crucial for you to maintain records about your role in providing advice to the client in case questions or complaints arise afterwards. In particular, if it is not clear from other documentation, you should maintain a record of:

Answer 25

1. the initial contact with the client;
2. the work you have been asked to do;
3. the dates of conferences and notes of advice given;
4. records of telephone conversations and advice given;
5. . significant changes to instructions; and
6. hearings attended and advice given.

These records should be retained for at least seven years.

It is perfectly appropriate to charge for photocopying the documents but you should make it clear in your client care letter what the charge will be. You may also be asked to store the original documents on behalf of the client, but barristers are strongly discouraged from agreeing to do so unless retention by you is required in order to undertake litigation on behalf of the client.