5.26 The Bar Council submits that it is justified in limiting direct access for legal advice to certain approved bodies. It argues that organisations such as those on the Bar Council’s approved list are better able to assess the quality of barristers’ services than the public and as a result would be in a better position to hire an appropriate barrister. The Bar Council says that this view:
“is reflected in the Direct Access scheme which targets organisations which are likely to make informed choices and which are coming from a position of economic and organisational strength.”189
Direct access for contentious issues
5.27 The Bar Council says that permitting full direct access would change the concept of the independent referral Bar. The Bar Council describes the independence of the Bar as an “overriding duty to the Court” above barristers’ personal interests, external pressures (for example, from other barristers or public opinion) and even the interests of the client in certain circumstances.190According to the Bar Council, the referral system whereby
barristers are engaged only through solicitors and must take a case if they are available (subject to their usual fee) “enables barristers to provide clients with advice which is more objective”, as they are not engaged to manage the affairs of their clients or to hold their funds.191
5.28 The Bar Council says that although the “continued existence of the independent referral bar necessarily entails that there are some services which barristers do not provide”192, it believes that such an independent referral
Bar has considerable advantages, in terms both of competition and the administration of justice.
International Experience
5.29 In England and Wales, where the concept of an independent referral bar also exists, direct access to barristers has now been extended to the public. However, although direct access is allowed both for advice and legal representation in court, barristers are prohibited from accepting instructions directly in areas of practice such as immigration or asylum work and family or criminal proceedings (subject to some exceptions). Where the brief involves a court appearance, the barrister is prohibited from doing the work of a solicitor in preparing the case. Barristers are not obliged to accept direct access work. A barrister who has indicated his/her willingness to undertake such work can refuse a direct access brief if it is in the best interests of the client that a solicitor be briefed.
5.30 Barristers in New South Wales (NSW) and Queensland are permitted to accept direct access briefs directly from the lay client for both legal advice and representation in court. Where the brief involves a court
appearance, the barrister is prohibited from doing the work of a solicitor in preparing the case. While barristers in NSW and Queensland are permitted to accept direct access briefs, they are not obliged to do so.
5.31 The direct access scheme in Victoria, Australia allows a barrister to accept instructions or a brief from a member of an approved professional body or a lay client in a matter in which the client is directly concerned. Under the direct access scheme a barrister must not accept instructions to receive or handle client’s money, perform any administrative work not normally performed by a barrister, or perform inter partes work of a kind not normally performed by a barrister. A barrister in Victoria must decline a direct access matter if it is in the interests of the client that a solicitor be briefed.
5.32 The Faculty of Advocates in Scotland has a direct professional access scheme through which it awards status to approved bodies to instruct an advocate directly. Instructions to counsel by members under the scheme are accepted for advisory work, drafting of documents, and the conduct of proceedings before any public enquiry, tribunal or forum (other than a court), before which the instructing person may have a right of audience. Membership of the direct professional access scheme in Scotland is largely composed of professional bodies and government agencies.
Views of Interested Parties
5.33 Both the Irish Insurance Federation and the Self Insured Taskforce support the proposition that direct access to barristers’ services be widened. Both organisations submit that their members would benefit from being able to instruct barristers directly.
190 Submission of the Council of the Bar of Ireland to the Competition Authority, July 2005, p.14. 191 Submission of the Council of the Bar of Ireland to the Competition Authority, July 2005, p.24. 192 Submission of the Council of the Bar of Ireland to the Competition Authority, July 2005, p.76.
Analysis of the Competition Authority
5.34 Barristers offer two key legal services: legal advice and legal representation. In its Preliminary Report, the Competition Authority proposed that Rule 4.1 and Rule 2.19 be abolished so that unlimited direct access to barristers for both legal advice and legal representation is permitted or that the existing Direct Professional Access scheme be expanded in a manner similar to the new scheme in England and Wales.
Direct access for legal advice
5.35 In response to the proposals in the Preliminary Report, the Bar Council outlined its intention to promote an expanded Direct Professional Access Scheme in respect of advisory services. Before implementing a new Direct Professional Access Scheme, the Bar Council intends to explore the implications of a wider scheme by means of a public consultation. It intends to seek the views of organisations that already use the Direct Professional Access Scheme, potential users and other interested persons with regard to the needs and demands of potential participants.
5.36 Although organisations such as insurance companies may, on the whole, be better able to assess the quality of barristers’ services than the general public, other businesses and members of the public will also often be well informed about the particular areas in which they seek legal advice, be able to put their questions to barristers in a succinct manner or already have the information compiled from an earlier experience. Barristers with previous experience in a particular sector of the economy should be particularly well placed to take instruction from lay clients from that sector.
5.37 The option of going directly to a barrister for legal advice should not be limited to a few approved clients. If the barrister believes that it is in the best interests of the client to see a solicitor in any particular case, he/she should be free to refuse direct access (as he/she is currently permitted to do). There is no evidence to suggest that widening direct access for advice would have any negative effect on the operation of an independent referral Bar or on the provision of legal services generally. It would instead have a positive effect on access to legal advice.
Direct access for contentious issues
5.38 The proposals of the Bar Council for extending its Direct Professional Access Scheme, referred to above, do not extend to contentious issues. The Council does not intend to allow direct access for this purpose.
5.39 Allowing direct access for contentious issues would increase the number of competing lawyers with the right to conduct litigation and as a result offer consumers greater choice in the market for legal services. Direct access for contentious issues could also reduce some clients costs by allowing them to cut out the services of a solicitor where they are not necessary.
5.40 The Bar Council submits that:
“The current system promotes certain efficiencies by dividing the services provided in litigation between barristers and solicitors. In contrast to advisory services, the running of a case requires both the skills of a barrister and the organisation, preparation and management of the case by another person, a solicitor. Barristers taking on the role of solicitors would substantially increase the costs to both individual barristers and customers”.193
5.41 If, indeed, the current system is the most efficient and provides the best value and service for consumers it is undoubtedly going to persist as the norm, even in a marketplace where direct access to barristers for
contentious issues is permitted. As with the current direct access scheme a barrister could be entitled to refuse a direct access brief. The fundamental point is that barristers should in general have the freedom to choose
5.42 The Bar Council believes that allowing direct access for contentious issues would undermine the core values of the independent referral bar, namely: duty to the court, duty to promote the client’s interest fearlessly, duty to accept instructions in any case (“Cab Rank Rule”), duty to act as a sole trader, duty of independence. 5.43 The Bar Council says there are several aspects to the duty to the Court:
• Not to deceive or mislead the Court;
• To bring to the attention of the Court matters such as legal authorities that may not help the client; • To conduct proceedings to assist the Court in the effective and efficient discharge of the Court’s duty to
administer justice.
5.44 It is not clear how allowing direct access for contentious issues would affect a barrister’s duty to the Court. Furthermore, the concept of referral is not necessary to promote or to discharge this duty to the Court, given that solicitors who appear in court have the same duty. The duty is not uniquely imposed on barristers. 5.45 The Bar Council states that it is the duty of the barrister to advance his or her client’s case subject only to the
paramount duty to the Court. In this connection, the barrister must not allow other matters or interests to intrude in the discharge of this duty. It would be illogical to suggest that a barrister representing a direct access client is not going to promote his or her client’s interests fearlessly.
5.46 Allowing direct access for contentious issues would not affect a barrister’s ability to practise as a sole trader. A barrister could continue to operate as a sole trader while taking on direct access briefs for contentious issues. 5.47 The Bar Council states that barristers “must operate independently of their personal interests and any external
pressures”and that “barristers are accountable only to the Court and to their client”. Direct access for advisory services has not altered a barrister’s ability to operate independently of their personal interests and any external pressures. It is similarly unlikely that extending the direct access scheme will alter this ability to operate independently. Furthermore, allowing direct access for contentious issues would not alter a barrister’s accountability, compared to the present situation.
5.48 Barristers in the State must, under the Bar Council’s Rules, comply with the Cab Rank Rule, that is, accept a brief provided the barrister has the requisite expertise and experience and the client is prepared to pay the requested fee. The Bar Council submits that this ensures that every person has equal access to the best advocates, facilitating equal access to justice.
5.49 The current Direct Professional Access Scheme operated by the Bar Council allows barristers to decide whether they wish to make themselves available for direct access clients. If direct access was extended to contentious issues, barristers should still be allowed to decide whether they wish to make themselves available for direct access clients. The effect on access to justice from extending Direct Access to contentious issues would be no different than is currently the case under the Direct Professional Access Scheme.
5.50 The Bar Council also points out that if clients were allowed to approach barristers directly in all cases, barristers would be obliged to handle clients’ funds, which they are prohibited from doing at present,194and would incur
considerable costs in setting up appropriate systems for the handling of such funds. It would also, in the Council’s opinion, give rise to the need for greater regulation of barristers to cover the handling of clients’ funds.
5.51 To allow direct access to barristers for contentious issues would require a regulatory system which enables barristers to handle clients’ funds while offering protection to the client. Similarly, certain restrictions in relation to touting and advertising would need to be placed upon barristers in order to protect consumers. Neither of these obstacles appears to be insurmountable given that: a) there is a regulatory regime in place which allows solicitors to handle funds and b) legislation and regulations are in place which protect unscrupulous solicitors from preying upon vulnerable consumers. While the provisions relating to solicitors do not provide a quick-fix solution they do provide an excellent reference point.
Solution
5.52 The expressed intention of the Bar Council to expand the Direct Professional Access Scheme in advisory services is welcome, but limits on who can access barristers for legal advice are unnecessary. The Competition Authority strongly believes that direct access to barristers for legal advice should be extended to all members of the public. As is currently the case, barristers should be free to choose whether they wish to take on direct access briefs or not.
5.53 It is not clear from the Competition Authority’s perspective why a barrister cannot represent direct access clients for contentious issues. There are some regulatory issues surrounding client’s monies, touting and advertising which would need to be addressed but these are hardly insurmountable. The Competition Authority believes that direct access for contentious issues would be beneficial for consumers but that the issues surrounding its implementation should be examined in more detail, by the Legal Services Commission recommended in Chapter 3.
Recommendation 8:
Allow unlimited direct access to barristers for legal advice
Details of Recommendation Action By
Permit unlimited direct access to barristers for legal advice. The Bar Council
December 2007
Recommendation 9:
The Legal Services Commission should undertake research in the area of direct access
Details of Recommendation Action By
The Legal Services Commission should be given the power Minister for Justice, Equality and Law to undertake research in any area of the market where reform Reform
may be beneficial for consumers or the functioning of the market.
The Legal Services Commission should undertake research in the June 2008 area of direct access to barristers for contentious issues.