The BSB’s recent application to the LSB for approval of a new handbook marks the continuation of a liberalisation agenda – bringing the Bar well and truly into the 21st century, after having, at least according to some, missed out the 20th century altogether (and most of the 19th as well if you consider the debate over wigs).
Amongst the changes proposed to come into effect from January 2014 are a relaxation of the rules restricting self-employed barristers from sharing premises and entering into arrangements with non-barristers, allowing for the development of a payment service to facilitate direct access, and enabling the self-employed Bar to conduct litigation. If you add this to other changes in the practice framework in recent years – such as allowing barristers to manage, be employed by and own ABSs, then you will have a regime that will provide the flexibility that barristers will need to survive in the harsh landscape of legal cuts, crime competitive tendering and increased competition from solicitors.
The last piece in the jigsaw will be the Bar Standards Board being able to authorise and regulate its own entities – including ABS’s, and indeed its application to the LSB for approval as an entity regulator is expected shortly. This does not mean however that the BSB will become simply one regulator amongst others – their entity authorisation will be focussed on advocacy, and, according to policy statements by the BSB is likely to contain restrictions on non-lawyer ownership of ABSs (limited to 25%) and other requirements such as a majority of managers needing to have higher rights of audience.
All in all, the BSB seems to have positioned itself quite cannily, preserving the nature of the Bar as a specialist advocacy service, whilst giving their members the freedom they need to compete. In doing so, they have naturally managed to retain a few of the legal fictions so beloved of lawyers throughout the ages.
Barristers will not of course pollute themselves by handling client money, but will set up payment services to do so. The cab rank rule – whereby barristers have to take on any case as the next in line without fear or favour – will be maintained in the new handbook.
Even when I was in practice as a solicitor 20 years ago, this as a rule that was more honoured in the breach than the observance. If you knew the clerk in the particular chambers well, then they would tell you quite openly that the particular barrister didn’t want to take on the case. If you didn’t, then the barrister would be magically unavailable due to a three week trial in Stafford starting the next day. It was always Stafford, for some reason.
The final nail in the coffin for the cab rank rule came a few years ago when falling payment rates meant that it was dis-applied in legal aid cases. This left the rule as nothing more than the principle that ‘I will take any case on, as long as you pay me enough money’. Now there’s a motto for the brave new world of legal services regulation.