Bar Select

This summary will explain how barristers are organised, what their regulatory controls allow them to do and how you can make use of them as a legal resource. Barristers are as a rule considerably less expensive than many solicitors of comparable experience and seniority and so represent very good value for money.

Ground Rules

• Barristers are subject to a Code of Conduct administered by the Bar Standards Board. There are two types of barrister: self-employed and employed;
• Self-employed barristers usually operate in associations known as 'Chambers' through which they are able to share costs. They are restricted* as to what legal services they can provide and may not for example:
  • undertake the management administration or general conduct of a lay client's affairs;
  • conduct litigation or inter-partes work (for example the conduct of correspondence with an opposite party, instructing any expert witness or other person on behalf of his lay client or accepting personal liability for the payment of any such person);
  • investigate or collect evidence for use in any Court
  *These restrictions may be relaxed in future depending on the outcome of a current BSB consultation process.
• Self-employed barristers can only be instructed by other lawyers such as solicitors; members of organizations that have been licensed by the Bar Standards Board; by lawyers, businesses or individuals based outside the UK; or by lay clients in England & Wales provided that the barrister accepting the instructions has been Public Access trained.
• Employed barristers are generally able to do everything that a self-employed barrister cannot do (as well as what they can do) and in particular can 'conduct litigation'. Restrictions apply as to whom they can provide legal services depending on the type of employer. Those working for a solicitors' firm can serve clients of the firm. When self-employed barristers go on secondments they effectively switch from being self-employed status to having employed status.

Direct Access

There are two kinds of access that represent exceptions to the general rule that self-employed barristers must be instructed by other lawyers or those specially licensed:

International Clients

Self-employed barristers are able to receive direct instructions from lawyers, businesses or individuals based outside the UK and can offer the following services to lawyers, businesses or individuals based outside the UK on a direct access basis:

• Specialist advice on all areas of the law in England and Wales, European Community and International Law, including Human Rights law;
• Specialist advice and assistance on the drafting, interpretation and enforceability of contracts governed by the law in England and Wales, or the laws of other common law countries;
• Specialist advice on commercial situations presenting legal, factual or technical difficulties;
• Arbitration services in England & Wales and in most other jurisdictions (the English Bar is one of the leading professions in the field of international arbitration);
• Mediation and other alternative dispute resolution services (as mediators, advocates or advisers);
• Expert witness services;
• Specialist advocacy services before European and international courts and tribunals;
• Specialist advice and assistance in the preparation of litigation or in a non-litigious context.

UK Clients - 'Public Access'

A self-employed barrister who has undertaken a one-day 'Public Access' course can accept instructions direct. The restrictions that apply to self-employed barristers remain and so there are limitations on what a barrister can be expected to do. There are however many potentially valuable ways in which a barrister may be of service to a corporate client including:

• Advice on the law
• Advice on risk of regulatory actions or third party claims against the company or its directors
• An opinion as to the strengths and weaknesses of a threatened claim or the likelihood of success or failure of proceedings underway
• Advice on likely quantum of damages or compensation
• Assistance with the drafting, interpretation and enforceability of contracts
• Assistance as a mediator or in a mediation, or in an arbitration
• Advocacy in courts and tribunals

Self-employed barristers have historically handled their communications with clients, and negotiation of fees through their clerks. However, it now increasingly common for barristers to be accessible on the phone and by email with their contact information (along with profiles) available through the internet (from their Chambers' web site and on Legal Directory sites). Other benefits of dealing with barristers include:

• They are used to working for a fixed fee rather than only by the hour
• Hourly rates when charged are generally much lower than rates charged by solicitors of comparable experience and seniority
• Fees charged are generally 'all in' with no charging for disbursements such as travel, copying and other administrative costs (unless exceptional)
• There are now about 1000 barristers (out of 13,400) who have been Public Access trained and this number is rapidly increasing