Guidance for Fellows Instructing
Barristers Direct under BarDIRECT Licence
General
Fellows of the Institute of Legal Executives
are licensed by the BarDIRECT committee of the Bar Council
to instruct barristers directly without first going through
a solicitor.
To give effect to the licence, the Council
of the Institute has enacted the following Byelaw:
Those members of the Institute who are
Fellows shall be authorised persons to instruct counsel
direct provided that they satisfy the following criteria:
- They possess a current practising
certificate issued by the Institute of Legal Executives;
and
- They are insured against claims
for negligence under a policy of Professional Indemnity
Insurance; and
- They have in place arrangements
for separate handling of client and office money and
for maintaining as trust monies any monies received
from third parties.
Guidance Rules
- This guidance is
for all Fellows intending to instruct barristers direct
including Fellows employed in private practice, employed
Fellows in commercial, voluntary or governmental organisations
and self employed Fellows. Failure to comply with this
guidance will be a conduct matter to be referred to the
Investigating Committee of the Council, which has the
power to instigate disciplinary action against Fellows.
Who may Instruct Counsel?
- Fellows of the
Institute with a current practising certificate who have
in place a policy of Professional Indemnity Insurance.
The policy may be either a personal indemnity insurance
policy, an indemnity insurance policy of their employer,
which covers them as an employee of the business, or employers
liability insurance providing appropriate cover.
- A personal Professional
Indemnity Insurance policy taken out by a self-employed
Fellow should provide an appropriate level of cover depending
on his/her area of work and gross fee income.
Practice Arrangements
- Fellows who instruct
counsel direct, in particular self-employed Fellows or
Fellows employed in commercial, voluntary or governmental
organisations, must ensure that they have in place the
practice arrangements A, B and C set out below.
- Fellows employed
in private practice by firms of solicitors will satisfy
practice arrangements A and C by virtue of their obligation
to comply with the Solicitors Practice Rules. In respect
of Practice Arrangement B, Fellows employed in private
practice who choose to instruct counsel in their own name
should note that this will mean payment to counsel will
have to be made on the BarDIRECT terms of work unless
expressly varied in writing.
- Practice Arrangement
A shall not apply to a Fellow acting in the course of
his/her employment as a public officer, an officer of
statutory undertakers, or an officer of a local authority.
Practice Arrangement A for
separate handling of client and office money and for maintaining
as trust monies any monies received from third parties
-
- Client money, which is money held
or received for a client should be kept separate from
office money, which is money belonging to the Fellow
or the practice. Guidance on what is classified as
client money or office money can be found in Practice
Rule 13 of the Solicitors Accounts Rules. Each type
of fund should be kept in a separate identified bank
or building society account (at a branch or head office
situated in England and Wales). This can be either
a general client account or a separate designated
client account for each client.
- It is recommended that the arrangements
for the handling of client monies and maintaining
these as trust monies, which are set out in the Solicitors
Accounts Rules, be adopted.
Practice Arrangement B for
ensuring that barristers fees are promptly paid
-
- In privately funded cases, unless
varied or excluded by written agreement with the barrister,
barristers fees should be paid in accordance with
the payment provisions set out in the BarDIRECT terms
of work. The obligation to pay counsel arises whether
or not the Fellow has been put in funds by the client
or the costs have been taxed or assessed
- In publicly funded cases, papers
should be submitted for taxation or assessment without
undue delay.
Practice Arrangement C -
Client Care Policy
- This should comply with the Institutes
Code of Conduct and Guide to Good Practice, and any
client care policy of the Institute. Client care rules
for solicitors in the Solicitors Practice Rules and/or
the Guide to Professional Conduct of solicitors and
client care rules of the Council for Licensed Conveyancers
should be observed where applicable, but in the event
of any conflict or inconsistency the Institute rules
will prevail.
In which matters may Counsel
be instructed?
- Counsel should
only be instructed in areas of work within the Fellow’s
competence. For instance this would include areas in which
the Fellow is qualified, he/she practices or is experienced
in, and in which his/her knowledge is up to date.
- Counsel can be
instructed to obtain written advice, draft documents,
and for advocacy or representation in courts and tribunals,
subject to limitations imposed by the Solicitors Act 1974
(see paragraph 12 below).
Circumstances where Counsel
should not be instructed
- Counsel
may not be instructed for matters which
are regulated matters under Solicitors Act 1974 (as amended
by the Courts and Legal Services Act 1990 and Access to
Justice Act 1999) or other legislation or practice rules
save where there is a specific power granted to Legal
Executives under section 28 Courts and Legal Services
Act 1990 (as amended by section 40 Access to Justice Act
1999) or any other legislative provision.
Explanatory note: Regulated
matters include those matters set out in sections 20-25
of the Solicitors Act 1974 (See Annex B). As at the date
of publication of this guidance, there is currently no
right to conduct litigation pursuant to section 28(2)(a)
Courts and Legal Services Act 1990 (as amended by section
40 Access to Justice Act 1999.)
-
There are limitations
on what barristers are able to do, imposed by the Bar
Council’s Code of Conduct. Details of those restrictions
are set out in the Bar Council’s information pack
for BarDIRECT clients and the BarDIRECT terms of work.
These include but are not limited to the following:
- The management and
general administration of litigation, including the written
or oral communication between the parties or their legal
advisors.
- The investigation and collection of
evidence for the court.
- The receipt or handling of client
money.
- The taking of proofs of evidence in
criminal cases (save as permitted in certain limited circumstances).
- Attending at police stations, without
the presence of a solicitor, to advise a suspect or interviewee
as to the handling or conduct of police interviews.
- Acting as a supervisor for the purposes
of section 84(2) of the Immigration and Asylum Act 1999.
Instructing Counsel
- The overriding
consideration in deciding whether it is appropriate to
instruct counsel direct is whether it is in the best interests
of the client. A barrister is not required to accept work
from a BarDIRECT client and may decline to do so if the
barrister considers it is in the interests of the lay
client or of justice that an intermediary should be instructed.
- Unless otherwise
agreed in writing with the individual barrister or chambers,
all instructions will be deemed to have been given and
accepted on the BarDIRECT terms of work annexed to this
guidance.
- The instructing
Fellow’s Fellowship registration number is to be
sent with every set of instructions to the barrister instructed.
- The instructing
Fellow should, where necessary or appropriate, attend
or arrange for counsel to be attended by a responsible
representative at court.
- Counsel’s
fees should be negotiated with counsel’s clerk.
Liability for payment of agreed fees is contractual and
fees should be settled promptly. A failure to pay counsel’s
agreed fees amounts to a breach of these rules, which
could result in disciplinary proceedings.
- It is good practice
for employed Fellows to obtain an indemnity from their
employer as to payment of counsel’s fees where counsel
is instructed in the name of the Fellow.
- Fellows employed
in private practice by firms of solicitors are advised
to instruct counsel in the name of the firm. Fellows instructing
counsel in their own name would not be covered by the
firm’s professional indemnity insurance and would
be personally liable to pay counsel’s fees. Where
employed Fellows consider that there are appropriate circumstances
for instructing counsel within their employment using
the BarDIRECT scheme, they should discuss this first with
their employer.
- Fellows employed
in private practice by firms of solicitors instructing
counsel in their own name for themselves or their own
personal clients would not be covered by the firms professional
indemnity insurance and need to be so covered personally.
They would be personally liable to pay counsel’s
fees. Where employed Fellows consider that there are appropriate
circumstances for instructing counsel outside of their
employment using the BarDIRECT scheme, they should discuss
this first with their employer.
Selection of Counsel
- Suitable counsel
should be selected according to the type of case, its
degree of complexity, and the level of court.
- The instructing
Fellow should ensure that counsel is selected on the basis
of skills, experience and ability and should not discriminate
on grounds such as gender, ethnic or national origin,
sexual orientation, marital status, religion, or physical
disability.
Disputes
- Any challenge to
counsel’s fees should be made promptly on receipt
of the fee note.
- The BarDIRECT terms
of work do not permit the withholding of fees where there
is a dispute as to fees or complaint about the service
provided by the barrister.
- Any disputes as
to fees should be taken up in the first instance with
the individual chambers. If the dispute cannot be resolved
informally it will have to be referred to the courts.
The Bar Council will not usually involve itself in disputes
over fees, except where there is an allegation of professional
misconduct.
- Any complaints
about the services provided by barristers instructed under
the scheme should be referred to the Bar Council.
Definitions
“Public officer”
means an officer whose remuneration is paid out of monies
provided by Parliament, the revenues of the Duchy of Cornwall
or the Duchy of Lancaster, the general fund of the Church
Commissioners, the Forestry Fund or the Development Fund.
“statutory undertakers”
means any person authorised by or under an Act of Parliament
to carry on any railway, canal, inland navigation, dock,
harbour, tramway, gas, electricity, water or any other
public undertaking.
“local authority”
means any body listed in section 270 of the Local Government
Act 1972 or section 21(1) of the Local Government and
Housing Act 1989.
“General client account”
means a client account opened with a bank or building
society in England and Wales that holds client funds for
more than one client.
“Separate designated account”
means a client account opened with a bank or building
society in England and Wales and designated for one client
only.
“Institute”
means the Institute of Legal Executives
Useful Addresses and Contacts
General Enquiries:
General Council of the Bar,
289-293 High Holborn, London
WC1V 7HZ
Tel: 020 7242 0082
www.barcouncil.org.uk
Complaints:
General Council of the Bar,
Complaints Department
289 – 293 High Holborn, London
WC1V 7HZ
Tel: 020 7440 4000
E-mail: JaniceBye@BarCouncil.org.uk
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