Referral Fees and Foreign Work Flashcards
Foreign Work - what rules must you follow?
rC13
In connection with any foreign work which you undertake you must comply with any applicable rule of conduct prescribed by the law or by any national or local Bar, UNLESS such rule is INCONSISTENT with any requirement of the CORE DUTIES.
How can you get international work?
rC14
If you solicit any work outside of England and Wales, you must not do so in a manner which would be prohibited by the Handbook.
Most important rules re foreign work?
rC13 and rC14
Foreign Work
(a) In connection with any foreign work which you undertake you must comply with any applicable rule of conduct prescribed by the law or by any national or local Bar, UNLESS such rule is INCONSISTENT with any requirement of the CORE DUTIES.
(b) If you solicit any work outside of England and Wales, you must not do so in a manner which would be prohibited by the Handbook.
What CD are involved in referral fees?
gC29
Making or receiving payments for referral fees is inconsistent with your duties under CDs 2, 3, 4 and may also breach CD5.
What do the rules on referral fees NOT apply to?
gC31
However, the rules on referral fees do NOT prohibit proper expenses that are not a reward for referring work, such as payments for:
(i) Clerking and administrative services (including where these are outsourced);
(ii) Membership subscriptions to ADR bodies that appoint or recommend mediators, arbitrators or adjudicators.
(iii) Advertising or publicity, which are payable irrespective of whether any work is referred or not.
Where do you find guidance on referral fees?
The Guidance on Referral and Marketing Arrangements for Barristers Permitted by the BSB document deals extensively with the issue of referral fees.
It sets out a number of features which the BSB will consider when determining whether a payment by a barrister to a 3rd party making a referral, or acting as an introducer, or providing administrative or marketing services will constitute a prohibited referral fee.
What features WILL indicate that the payment is a prohibited referral fee?
Features that WILL indicate that the payment is a prohibited referral fee:
(1) The payment amounts to the offence of bribery under the Bribery Act 2010;
(2) The payment is made in connection with a personal injury work AND is prohibited by LASPO 2012.
What Features which are LIKELY TO indicate that the payment is a prohibited referral fee?
Features which are LIKELY TO indicate that the payment is a prohibited referral fee:
(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.
What features which MAY suggest that the payment is not a referral fee?
Features which MAY suggest that the payment is not a referral fee:
(1) The payment is made to an employee or agent of the barrister making the payment, e.g. a clerk or an outsourced clerking service, 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 for the purpose of being included in a list of providers of legal services and the amount is not dependent on the number of referrals received from that introducer.
Must it always be payment?
No - Remember that a payment for these purposes includes not only financial payments but also PAYMENTS IN KIND such as providing services or facilities at reduced or no cost.
