New Terms of Engagement
2
Profession Terms of Engagement December 2012 15 www.counselmagazine.co.uk F or more years than it cares to recall the Bar Council has considered the non-contractual terms on which barristers offer their services to solicitors (set out in Appendix G of the Code of Conduct) to be outdated and unsatisfactory. They not only lacked clarity but also had an adverse effect on the strength and diversity of the Bar. Many barristers have faced unacceptable delays in collecting their fees and have had to write off significant amounts of unpaid fees for want of an effective enforcement process. The problem has been particularly acute for barristers in the early years of practice and it may have contributed to the loss of young talent from the Bar. Devising new terms of work has proved to be a major challenge not least because the arrangements for approval of necessary rule changes have been both complex and time-consuming. But, at long last, we now have a set of contractual terms which are fit for the purposes of the modern Bar and the clients we seek to serve. Following extensive consultations, the BSB applied to the Legal Services Board (LSB) in October 2011 to replace the old terms of work with new contractual terms called “Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised NEW TERMS OF ENGAGEMENT FOR BARRISTERS Persons 2012”(“the New Contractual Terms”). The LSB approved the New Contractual Terms on 27 July 2012 and they will become effective on 31 January 2013. The key changes taking place on that date are: z The old terms of work and Withdrawal of Credit Scheme are abolished in their entirety. They are replaced in the Code by the New Contractual Terms and an advisory “List of Defaulting Solicitors and other Authorised Persons” (“the Advisory List”). z The Cab Rank Rule is amended so that, instead of applying to the old terms of work, it will apply to the New Contractual Terms and to any terms which the barrister or his chambers have published as the barrister’s standard terms, so that solicitors or other Authorised Persons (see below) can require a barrister to accept instructions on the New Contractual Terms or on the barrister’s own standard terms. The usual exceptions to the Cab Rank Rule (for example, being professionally embarrassed) will continue to apply. z A barrister will have the right (but not the obligation) to refuse instructions on credit from solicitors or other Authorised Persons named on the Advisory List, if the barrister so wishes. After years of waiting and months of consultation, new terms of work for barristers have been approved and will become effective from January 2013. Barrie Akin, Chairman of the Bar Council’s Contractual Terms Implementation Committee, explains
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New terms of work for Barristers in England and Wales will come into effect from 31st January 2013
Transcript of New Terms of Engagement
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Profession
Terms of Engagement
December 2012 15www.counselmagazine.co.uk
For more years than it cares to recall the Bar Council has considered the non-contractual terms on which barristers offer their services to solicitors (set out in Appendix G of the Code of Conduct) to be outdated and unsatisfactory. They not only lacked clarity but also had an adverse effect on the strength and diversity of the Bar. Many barristers have faced unacceptable delays in collecting their fees and have had to write off significant amounts of unpaid fees for want of an effective enforcement process. The problem has been particularly acute for barristers in the early years of practice and it may have contributed to the loss of young talent from the Bar.
Devising new terms of work has proved to be a major challenge not least because the arrangements for approval of necessary rule changes have been both complex and time-consuming. But, at long last, we now have a set of contractual terms which are fit for the purposes of the modern Bar and the clients we seek to serve.
Following extensive consultations, the BSB applied to the Legal Services Board (LSB) in October 2011 to replace the old terms of work with new contractual terms called Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised
NEW TERMS OF ENGAGEMENT
FOR BARRISTERS
Persons 2012(the New Contractual Terms). The LSB approved the New Contractual Terms on 27 July 2012 and they will become effective on 31 January 2013.
The key changes taking place on that date are:zz The old terms of work and Withdrawal of Credit Scheme are abolished in their entirety. They are replaced in the Code by the New Contractual Terms and an advisory List of Defaulting Solicitors and other Authorised Persons (the Advisory List).zz The Cab Rank Rule is amended so that, instead of applying to the old terms of work, it will apply to the New Contractual Terms and to any terms which the barrister or his chambers have published as the barristers standard terms, so that solicitors or other Authorised Persons (see below) can require a barrister to accept instructions on the New Contractual Terms or on the barristers own standard terms. The usual exceptions to the Cab Rank Rule (for example, being professionally embarrassed) will continue to apply. zz A barrister will have the right (but not the obligation) to refuse instructions on credit from solicitors or other Authorised Persons named on the Advisory List, if the barrister so wishes.
After years of waiting and months of consultation, new terms of work for barristers have been approved and will become effective from January 2013.
Barrie Akin, Chairman of the Bar Councils Contractual Terms Implementation Committee, explains
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Profession
Terms of Engagement
1 December 2012 www.counselmagazine.co.uk
zz The New Contractual Terms are for use by solicitors and other Authorised Persons, which here refers only to persons or bodies authorised by the Law Society/SRA under section 18(1)(a) of the Legal Services Act 2007, such as alternative business structures (ABSs). zz The New Contractual Terms will not apply to specifi ed publicly funded work, where other arrangements are already in place.zz The lay client is not a party.zz The New Contractual Terms will not operate as default terms. It is accordingly in barristers interests for the basis of engagement to be agreed at the outset. Barristers are strongly recommended to have adequate procedures in place by 31 January 2013 to ensure that the basis upon which instructions are accepted is clear. The Bar Council is providing training for barristers and clerks details appear on the Bar Council website: www.barcouncil.org.uk.zz In any case where the solicitor does not insist on using the
new Standard Contractual Terms, or the barristers own published terms, barristers are still free to agree diff erent terms, or to amend the New Contractual Terms (or, if they wish, to have no agreed terms at all).zz The Advisory List will be similar to the abolished Withdrawal of Credit Scheme, except that complaints to the Bar Council can only be made in respect of non-payment of joint tribunal awards, where judgment has been obtained for unpaid fees, or where barristers are unpaid in respect of publicly funded work. Solicitors named in the Withdrawal of Credit List as at 31 January 2013 will be transferred to the Advisory List and complaints can continue to be made to the Bar Council in respect of work performed under the old terms of work.
Re aders will, I hope, welcome these revisions to barristers terms of engagement as a measured solution to long-standing problems. They should bring benefi ts for the Bar and for the ultimate consumer of its services - the lay client. z
For further information on the new contractual terms, contact Janice Marshall at the Bar Council secretariat direct line 020 7611 1375, email [email protected]. The new Standard Terms and changes to the Code of Conduct can be found on the Bar Councils website under http://bit.ly/RKu3Jd.
Solicitors named in the Withdrawal of Credit List as at January 2013 will be transferred to the Advisory List and complaints can continue to the Bar Council in respect of work performed under the old terms of work.
Barrie Akin, Chairman, Contractual Terms Implementation Committee of the General Council of the Bar
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