Referral and Marketing Arrangements Guidance

Question 1

What is included under the term a payment?

Answer 1

a financial payment and any other benefit such as the provision of services or facilities for no cost, or at a reduced rate.

Question 2

What are the features which indicate that the payment is a prohibited referral fee?

Answer 2

1. the payment is made in circumstances which amount to bribery under the Bribery Act 2010
2. the payment is made in connection with personal injury work and is prohibited by the Legal Aid, Sentencing and Punishment of Offenders Act 2012

Question 3

What features are likely to indicate that the payment is a prohibited referral fee?

Answer 3

1. the payment is made to a professional person acting for the lay client who has a duty to act in the best interests of that client when making a referral.
2. the payment to an introducer is linked to specific referrals.
3. the payment to an introducer for services provided by the barrister is not a set fee but is linked to the number of referrals.
4. in a publicly funded case, the fee paid to an instructed barrister is less than the Legal Aid Agency fee for those advocacy services.
5. the payment is a condition of receiving a referral.
6. a payment for marketing or related services is higher than market rates

Question 4

what are the features that may suggest the payment is not a referral fee?

Answer 4

1. the payment is made to an employee or agent of the barrister making the payment in return for the services they provide to the barrister and not for onward payment to any person who refers work to the barrister.
2. the payment is made to a marketing or advertising agency and the amount does not depend on whether any instructions are received or on the value of any instructions received
3. the payment is made to an introducer who is not an authorised person or other professional person

Question 5

What will the BSB consider when deciding to take regulatory action where payment which may amount to referral fees have been made?

Answer 5

the underlying nature and purpose of the arrangements and whether they were in the best interests of the client, either by helping them to access legal services not otherwise readily available to them or by providing them some benefit which is directly attributable to the payment made.

Question 6

What must a barrister do where a payment on the face of it appears to be related to referrals?

Answer 6

they will need to demonstrate that the payment is genuinely made inroads eturn for a service other than in return for the decision by the person who instructs the barrister to instruct that barrister.

Question 7

What will the BSB consider when the payment has been made other than to an agent or employee of the barrister.

Answer 7

whether the client has been informed of the fee and had the opportunity to challenge it.