Handling complaints made against you

You are probably an excellent barrister. This does not mean you will never face a complaint, and it certainly does not mean you will never get things wrong.

If you do receive a complaint, there are good resources available online. Members of the Bar operate a confidential advisory service for those against whom a complaint has been made – see http://www.barcouncil.org.uk/supporting-the-bar/member-services/barristers-complaints-advisory-service-(bcas)/.

There is guidance for the operation of a Chambers complaints procedure on the BSB website at https://www.barstandardsboard.org.uk/code-guidance/first-tier-complaints-handling/.

  • Complaints may take many forms. A minor gripe or forgotten attendance note may be sorted out by you, the client or solicitor and your clerks and should not need to involve formal procedures or the BMIF.
  • If the complaint is more serious, and you are comfortable doing so, talk to other members of chambers and/or clerks if a complaint is made against you.
  • You will need to speak to your Head of Chambers if the matter is serious (and you may want to even if it is not).
  • Inform the BMIF as soon as possible.
  • If a complaint is going to a tribunal, the Bar Mutual Indemnity Fund (‘BMIF’) should pay for your representation. If for any reason it won’t, ask a more senior member of chambers for help.
  • The best advice is not to sit on a complaint or put your head in the sand and hope it will go away. Engage and respond, even if it is painful or infuriating.
  • Always respond to letters and emails from the BSB, as failure to do so may be a separate offence.

Carolyn McCombe, Chief Executive of 4 Pump Court says:

“I agree – and I particularly support the advice that young barristers should not put their heads in the sand and hope that any problem will go away. If they do get something wrong e.g. forget to ask for interest or costs at a hearing, it is much better that the clerks find out from them immediately rather than later from a disgruntled solicitor. Everybody makes mistakes and the sooner you put your hands up the easier it will be to deal with – the cover-up will be much more damaging than the transgression.”

Your chambers will have a complaints handling procedure, with strict timetables for procedure. You must comply with it. Every complaint must be treated seriously. If a complaint comes direct to you, inform your senior clerk or head of chambers immediately so the complaints procedure can be complied with.

Volunteering

Young barristers are often asked to volunteer – by working for the Bar Pro Bono Unit, at a Legal Advice or Law Centre, or by providing services free to friends, relations or charities. There is no reason why you should not do this, and it can provide valuable experience.

The Bar Pro Bono Unit is a national charity that offers opportunities for barristers to make a contribution to the community. It matches members of the public with deserving cases but who are unable to obtain legal aid and cannot afford to pay for legal representation with barristers who are willing to donate their time and expertise for free. It also operates a trustee finding service for charities wishing to appoint legally qualified trustees. For more information see: http://www.barprobono.org.uk/overview.html.

The Free Representation Unit provides representation at tribunals in social security and employment cases. There has been a significant reduction in the number of cases being brought before the Employment Tribunals and a corresponding drop in the number of volunteers required, but applications are still welcome from junior barristers and would-be barristers at all stages of their legal training and early careers. See generally http://www.thefru.org.uk/volunteers.

Barristers may supply legal services (as defined in the BSB Handbook) at a Legal Advice Centre on a voluntary or part time basis so long as they observe the requirements of rS41-42 and gS9-11 of the Handbook. The BSB’s definition of “legal services” specifically excludes “giving advice on legal matters free to a friend or relative or acting as unpaid or honorary legal adviser to any charity benevolent or philanthropic institution”, so if you are acting in any of these capacities you need not hold a current practising certificate. The situation is different if you are employed by a Legal Advice Centre.

Keeping a record of your work

Almost all Chambers will use diary software to record cases and financial information. It can be helpful to keep your own spreadsheet or other record of the work you have done. This is helpful so that you have a note of when you completed a piece of work and sent it out, when you were paid for work, the hours you spent on the work, and the sort of work it was. You will find this invaluable if you are instructed on the same case again in the future. It can also be helpful for matters such as filling in your BMIF return.

It is also an obligation under the BSB Handbook rC87 to ensure that your practice is efficiently and properly administered and that proper records of your practice are kept. rC88 also provides that you must have adequate records to support the fees charged in any case, so having an accurate record of the hours you have spent will stand you in good stead in case of any dispute.

The Bar Council, the BSB Handbook and professional guidance

  • There is a wealth of information on the Bar Council and BSB websites. It’s well worth searching them for ethical and regulatory guidance, as well as helpful documents relating to all sorts of practice issues and areas.
  • It is important that you know the rules that govern your professional conduct, not only for your own benefit but so you can recognise if others fall below the standards expected of barrister. You will be guilty of serious misconduct yourself if you fail to report a barrister who has committed serious misconduct to the BSB (see BSB Handbook, rC66-69, where there is guidance as to what constitutes “serious misconduct”). If you need to make a report, or wish to talk to the BSB about a possible reporting situation, contact the BSB Professional Conduct Department on 020 7611 1445.
  • The BSB website is the place to go for:

– Reminders of regulatory requirements (dealt with above)
– Details of CPD requirements at https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/continuing-professional-development-from-1-january-2017/, and
– Practising certificate guidance (see above).

Unregistered Barristers

There is especially helpful Guidance for Unregistered Barristers (i.e. barristers without practising certificates) on Supplying Legal Services and Holding Out at https://www.barstandardsboard.org.uk/media/1731668/guidance_for_unregistered_barristers___holding_out.pdf(see BSB Handbook, Code Guidance). It gives a lot of detail on what a barrister who has been called but not obtained a practising certificate may say about his qualifications in any other working environment.

The Bar Council

Details of all Bar Council services are at http://www.barcouncil.org.uk/supporting-the-bar/. In particular:

  • Training courses – see Member Services – Training Courses – especially on public access and public access top-up for barristers and clerks, litigation training, and on money laundering/POCA, credit management, and business development and marketing.

The first years of practice – regulatory requirements

  • Supplying legal services – A pupil can only supply legal services to the public once they have completed (or been exempted from) the first non-practising six months of pupillage and if they have the permission of their pupil supervisor or Head of Chambers to do so. All barristers in their first three years of practice following pupillage must work either from Chambers, or from “an office of an organisation” where there is someone qualified and willing to provide them with guidance.
  • You will need a ‘qualified person’ to provide you with guidance on supplying legal services to the public, the exercise of a right of audience and, where relevant, conducting litigation. The same person may fill all three roles, provided he or she is suitably qualified. See rules S16-22 of the BSB Handbook and the related guidance for definitions and requirements.
  • There is a lot of information about the practising certificate rules on the BSB website. See https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/practising-certificate/. The site gives overall guidance and there are individual briefing notes on:

– The calculation of the PCF.
– The Authorisation to Practise Regime for 2015/16.
– Specific guidance on the PC regime for self-employed barristers.
– See also the link to a helpful document – ‘Guidance on Practising Certificates for Pupils and Newly Qualified Barristers’.

  • Do remember that by s14 of the Legal Services Act 2007 it is a criminal offence to provide legal services (the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities, notarial activities, and the administration of oaths) without authorisation.
  • The Bar Council Ethical Enquiries Service (phone 020 7611 1307 or email Ethics@BarCouncil.org.uk) can assist with enquiries relating to the specific circumstances in which a practising certificate may or may not be needed. Questions relating to the issue of practising certificates should be directed to the BSB via 020 7242 0934.
  • See also the regulatory provisions in section D2.1 of the BSB Handbook (rules C119-131) for barristers undertaking public access work.
  • Conducting litigation: don’t forget that you cannot conduct litigation (see paragraph 4 of Schedule 2 to the LSA 2—7 for a definition) without authorisation to do so from the BSB. In particular you cannot issue a claim or application. There is more on the definition of “conducting litigation” on the Regulatory Issues page in the Employed Bar section of the Toolkit.
  • You will need a practising certificate, and you will need to satisfy the BSB that you have appropriate systems in your place of practice to enable you conduct litigation: that you have the requisite skills and knowledge of litigation procedure to enable you to provide a competent service to clients; and that you have adequate insurance.
  • You will need a ‘qualified person’ (see above) if you are under three years’ standing.
Data Protection and Confidentiality

Pupils and junior tenants need to be registered under the Data Protection Act and chambers needs to have in place systems to deal with IT Security and Confidentiality. By way of example, your chambers will probably have:

  • An IT Security policy which deals with such things as physical security, network perimeter security, file security, email security and authentication and authorisation.
  • A confidentiality policy designed to ensure that confidential data (whether electronic or physical) remains confidential, including procedures to cover situations where different members of chambers are instructed by different parties in the same case or act as arbitrators or judges in cases where members of chambers are involved as counsel for one or other of the parties.
  • A Social and Online Media code of practice which emphasises the risks which can arise from personal websites, blogs, online discussion forums or other social networking or image and video sharing platforms such as Facebook, LinkedIn, Flickr or YouTube.

It is essential that you take data protection issues seriously. It is all too easy to have a ruck sack stolen from a pub, or to leave a briefcase on a train. The Information Commissioner has fined several barristers heavily for data protection breaches.

Childcare and other personal commitments

How to make your mark at the Bar while maintaining a personal life

There is a whole section of the Toolkit devoted to wellbeing and work-life balance. Members of the YBC offer the following additional tips.

  • Finding a work-life balance may seem very difficult or impossible in your first years. It is essential to maintaining mental resilience and dealing with stress.
  • It is not for this toolkit to tell you how to run your personal life in terms of personal relationships, marriage and children. However, maintaining a strong network of friends is important to remind you that there is a world outside of work and to give you perspective (even if your friends are all barristers).
  • Do remember that you are self-employed and that it is up to you to manage your working hours in a way that suits you. Don’t allow yourself to be pressurised into taking on work that you can’t do properly (that would be a breach of the BSB Handbook anyway), or which would involve an unacceptable level of stress.
  • If for any reason you find that you need to cut your working hours to work part-time for personal or family reasons, do discuss it with your clerks, Head of Chambers, Chambers’ Manager or others as appropriate.
  • Don’t underestimate the good that hobbies, sport or music can have on mental well-being to refresh and renew mental capacity.

CPD: How best to choose your points

  • Make sure you do a required course from your Inn or, for those over three years’ call, the Keble advocacy course.
  • CPD is intended to help you develop. You may not get much benefit from doing quizzes or streaming video online, even if these are the options available at the last minute.
  • Specialist Bar Associations often run excellent CPD events, some of them aimed specifically at the young Bar at little or no cost.
  • It is perfectly possible to get CPD for free by attending lectures, seminars and other events or by writing articles or giving talks. These can present good opportunities to market yourself too.
  • Try to make CPD work for you; talks can be a networking opportunity if not just focussed at the Bar.

The YBC runs two seminars a year, as well as an annual conference which is an opportunity to get points, network and engage in issues relevant to the young Bar. At around £60-70 for upwards of 4 hours CPD the Young Bar Conference offers excellent value. For details of current YBC activities see:
http://www.barcouncil.org.uk/about-us/constitution-and-structure/committees/young-barristers’-committee/.

 

Marketing your practice

Help to build you own practice; engage in Chambers’ marketing; get involved in developing marketing idea;
show off your knowledge by lecturing, book publishing and editing

 

  • Chambers may leave marketing to clerks, practice managers or staff. This doesn’t mean that junior barristers can’t be involved.
  • If Chambers runs seminars or talks, then attend, and get to know other attendees. Find out if you can speak or sit on a panel to give your perspective or to discuss developments in the law. Senior members of Chambers are often delighted to let junior barristers participate in talks in exchange for help with research and preparing Powerpoint slides.
  • If your chambers has a marketing committee, look into the possibility of joining it or suggest ideas for events. If your chambers doesn’t have a marketing committee then you might suggest starting one, though you will probably wish to feel your way forward on this: in a more traditional set the head of chambers or committee chair may prefer to approach you if they want help. Keep an eye out for issues which crop up in your work which you think might make good material for a seminar or talk, and offer to organise one. Make sure your clerks or management committee know you are interested in assisting with marketing. Above all, be proactive.
  • More senior members of chambers or teams may contribute to practitioner texts or encyclopaedias, Westlaw etc. This is a good opportunity to impress others in and outside chambers with your detailed knowledge and commitment. Get involved if you can. And if there isn’t a book or practitioner text in an area of law in which you practice, then start writing it!

A senior clerk says:

“Turn up at events – whether you’re speaking or involved or not. Go and listen. Offer to look after the registration desk. It is rare not to be able to make contacts at drinks receptions afterwards, and you will get your face and name known. If you go to an event, ask your clerks if they know anyone who’s likely to be there and might be a useful contact. Writing articles is a really good way of getting yourself known too.”

Working with your clerks

How best to engage with your clerks to encourage work to come your way;
and what your clerks need from you

 

  • When you start on your feet as a pupil there is likely to be a particular person who clerks you. It is important to build and maintain a good relationship with this person.
  • It goes without saying that your clerks need you to be reliable and punctual, to give them reliable feedback, and advance warning (if possible) of any problems you may see coming up with your diary or workload. They need to see that you have presence, and the ability to make a good impression on professional clients. And that you fit into the work and ethos of Chambers.
  • Always remember that your clerks are people with their own stresses and that they have a number of barristers to manage and cajole.
  • Remember too that they wish to do whatever they reasonably can to help you.

From a YBC Member:“Though some of them have a funny way of showing it….!”

  • As a junior tenant try to arrange a practice development meeting with your clerk or a more senior clerk. Try to have these meetings on a regular basis to discuss your career, where it is going and where you want to go next. Such meetings should take place about once a year, perhaps more frequently in the first years of tenancy.
  • Traditionally clerks have a role in marketing chambers and barristers. Much of this work is also done by practice managers or other chambers staff. Don’t leave marketing entirely to others. Ultimately, you may be better at selling your services than they are, or at the least may be able to make a valuable contribution to support their efforts. Even if you can’t, the effort is much appreciated and will not go unnoticed.
  • It is important to remember that you and your clerks ultimately have the same goal in mind: a successful practice for you. Teamwork is therefore crucial. This involves communication. If you do not have time to do a particular piece of work properly, or are about to keel over with exhaustion, tell the clerks. Equally, if you are quiet, also tell the clerks. They have many barristers’ practices to manage and may not have noticed. As much notice as possible of potential quiet periods, however, is useful. Clerks are unlikely to be able to magic a brief out of thin air on no notice.
  • If you encounter particular stresses, health problems or difficulties, always involve your clerks. There are some tips on how go about this on the wellbeing section of the Toolkit.

Simon Boutwood, Director of Harcourt Chambers gives a clerks’ view:

 

 

  • The pupils who take on anything and everything (as long as it’s within their competence of course) are the ones who will do well at the Bar. If your clerks ask you to do a piece of work, and you have time to prepare it, then do it. If you resist, or are picky, they’ll eventually give up asking.
  • And don’t complain about the fee, or offer “suggestions” as to what the fee should be!!
  • If you work hard on things you might not necessarily want to do when you’re very junior, the good work will invariably come your way as you become more senior.
  • Build your career by being helpful and available. If you put yourself out, your clerks will notice, and so will your clients.

Comment: there is more on fees, the way in which they are negotiated, and the junior barrister’s lot on the Terms of Payment page within the financial section of the Toolkit.

Timetabling holidays

  • You need holidays. Don’t be afraid to take them.
  • In your first years you may find it best not to go away during school holidays or in August. More senior practitioners are likely to be away during these times, creating potentially interesting opportunities to pick up briefs in their absence.
  • Criminal courts and county courts run all year round so there may be fewer ‘quiet’ times to go away.
  • Don’t be afraid of taking holidays of at least a week, and take longer ones as you become more confident as you progress. If you have any concerns, discuss them with your clerk.
  • There is more information on work-life balance on the wellbeing section of the Toolkit.

Maintaining relationships with more senior members of chambers

Maintaining relationships with more senior members of chambers in the hope of developing opportunities for junior work – or how to impress without annoying or toadying

In many ways, Chambers can operate as an internal market, with senior members being a very important source of work for junior members. Not only this, but working with senior members gives you access to those senior members’ contacts and experience, which can be invaluable.

You may get junior work as a result of personal relationships (in particular your former supervisor), or simply because you are the one who’s available when a junior is needed for a case.

In your first years, don’t be frightened of asking QCs or senior juniors what they are working on and if you can help. This will expose you to higher calibre and more complex work, and give you opportunities to junior in future. Also do not be afraid to ask questions and go to senior members if you have a difficult case. This can benefit you in three ways: by giving you support; by giving them an opportunity to see how you approach a case; and by giving you a chance to see how they would approach such a case.

In crime, especially in London, many junior briefs go to in-house Higher Court Advocates (HCAs). Noting briefs may give you a better chance of being exposed to more complex work. If you do find yourself on a noting brief don’t just be a secretary. Always be interested in the case and remember that you are representing a client, even if they are physically absent.

Do be willing to devil written work in your first few years. This can also be a gateway into junior work later on and will help you to develop your relationships with more senior members of Chambers.

Sarah Knight says:

“You may feel in awe of or intimidated by more senior members of Chambers. Having respect for them is a good thing. You will want to impress them to hopefully secure their vote when it comes to a tenancy application, but remember that they have busy practices and will be mostly focussed on themselves and their own caseload rather than you. If you are invited to a social activity it may be worth checking first with your supervisor that it would be deemed appropriate within Chambers. If in doubt, ask about it. Remember that you are not there to make friends per se. Friendships may evolve and will do naturally over time, but for the duration of your pupillage the process requires you to maintain a balance between generally fitting in within Chambers and doing well in your work. Don’t focus on one of these to the exclusion of the other.” 

Relationships with solicitors

How to build good professional relationships; what solicitors need from you
– expertise, flexibility, preparation, rapport with clients, mutual respect, attention to detail

 

  • Solicitors will come to you, initially, to do the work they cannot cover themselves, or where they do not want to deal with difficult clients. In time, if you do a good job they will develop confidence in sending work to you, and their clients will be reassured by your expertise.
  • When you receive instructions from solicitors, it is always a good idea to give them a call. This instantly makes the relationship more personal and also gives them comfort that you have received the instructions and are on top of things. Before making the call (especially if it is to a solicitor you do not know) make sure that you are on top of the issues.
  • It is usually a good idea, time permitting, to find out about the particular firm or individual who is instructing you. The clerks or other members of chambers will have a wealth of information and most firms have websites with profiles. Your approach to ringing the senior partner will be different to calling a junior paralegal!

Carolyn McCombe, Chambers Chief Executive says:

“I impress upon our junior tenants that it is important to gauge the seniority of the person you are dealing with and to be sensitive as to the level of formality to adopt when first speaking to them on the telephone or sending them an email. It should make a difference whether you are addressing the senior partner or a trainee and it is always worth remembering that the solicitor or client may be old enough to be your parent or grandparent. If in any doubt, it is safer to err on the side of formality and wait to be invited to use first names etc. One partner recently told me that if he receives any emails which start “Hi John” he deletes them without reading them.”

  • It is also important, during the call, to try to understand what the solicitor is actually looking to achieve beyond the immediately pressing point. The solicitor will have their own views about the case and, in all likelihood, their own targets and pressures (which could be to do with turn-around times, fees or a combination of the two).

So what does doing a good job mean? Greg Cox, Partner and Litigation Solicitor of Simpson Millar Solicitors suggests:

 

  • Don’t sit on papers. If a longer period of time is required make sure that the solicitor knows; client expectations can then be managed. It is better to be realistic and deliver on time than over-promise and fail to deliver.
  • Don’t be afraid to ask your solicitor for more material if you need it.
  • After attending a hearing solicitors will want concise reports and attendance notes.
  • They are unlikely to complain if you set out action points in numbered paragraphs or bullet points.
  • Similarly, they may not want lengthy advices on esoteric points of law (if they do, they’ll usually ask for them): what they will want is focussed, practical advice that will assist the lay client. If you need more time, or information, or if there is any difficulty with returning the work within agreed timeframes, try to speak to the solicitor directly.
  • Solicitors are often very busy. A clear summary of the advice/report of hearing with next steps which is written in a form suitable to pass on to the client with minimal adaptation will be well received.
  • Think about proportionality and the costs which the solicitor will be able to charge or recover. If the case is a modest or fixed fee case a long shopping list of actions or items is unlikely to go down well.
  • When dealing with more junior solicitors remember that they might be looking to you to help with client management. A clear and unequivocal advice is a very helpful tool to manage clients. An advice which has many shades of grey, or which recommends that disproportionate and costly steps are taken and which doesn’t reach definitive conclusions can cause difficulties with client management.
  • Similarly, in litigation, the opponent can be difficult or confrontational (either tactically or just because it goes with the territory). Helping a junior solicitor deal with or address such behaviour (suggesting a response or just re-assuring them that they are on the right track) will be appreciated.

Chambers Director Simon Boutwood says:

 

  • Always acknowledge a piece of work as soon as you receive it. Your instructing solicitor will be glad to know you’ve picked up the papers – even if your message is simply to tell them you’ll get back to them as soon as you’ve had time to read them. It ensures the solicitor is abreast of what’s happening, enables him to speak positively of you to the client, and enhances his relationship with his client too.
  • The most frequent request clerks receive from solicitors is for their barristers to send an attendance note as soon as they can after a hearing. If you do nothing else on your way back from court, email your solicitors with a note, so that they are briefed as to what happened before the client rings. Just the salient points will suffice, and bullet points are good. If you need to send a fuller note or to speak to the solicitor, say you will do so when you get back to Chambers.
  • Solicitors want practical solutions. This is what the client wants too.

A senior clerk adds:

“If you need more time to complete a piece of work, be sure to ask your solicitor for it before the deadline for your having done the work expires. Many chambers run a diary system: your clerks can help you by diarising deadlines and dates for the return of papers. If they can’t, set up a diary system for yourself.”

Building relationships

 

  • You don’t have to socialise with solicitors, but you may want to after getting a good result in a case or after a long-running case ends. If you have friends or contacts who are solicitors then maintain that relationship and let them know if you want to work with them.
  • Whether or not you socialise with solicitors, if you have done a “good job” by hitting some or all of the points set out above, it is usually worth a short phone-call after a difficult case when the pressure is off to look back and reflect – making sure that the work you did was noted.
  • Greg Cox suggests that being available as a sounding board prior to a formal instruction can be a good way of building relationships. The “what do you think about this…..?” call will invariably lead to an instruction on the point. A little care needs to be taken here to avoid being used for free advice and make sure that the formal instructions come. You may also find that you have no idea what the answer to the question is, but you can always offer to go and find out if they actually want to instruct you.

Simon Boutwood, Chambers Director adds:

“It is so very important to have contact with your clients. Think of a reason to get together with your solicitor over a coffee. If you see an article or hear of something that might be of interest to them, ring, or pop it in the post to them: “I saw this and thought of you”. Follow up with a call. “Did you get….?” “Any good?”

“Follow up on cases you haven’t been involved with for a while. Express an interest in feedback on what’s happening. By virtue of having completed their training requirements, it must be assumed that all barristers are competent and able. What will get you the work is the rapport you have with your clients. It’s all about building relationships.”

What we need from Counsel: Julian Wilson, Head of the Clinical Negligence Team at Thompson Smith & Puxon, says:

  • Unless you can respond with the draft or advice within 14 days make sure you contact your instructing solicitor to give an accurate estimate of your timescale for producing the work requested. In particular, where there is a time limit do not leave the matter to the last minute.
  • Check the instructions on receipt of the papers and, if necessary, ask for further information or documents. If a conference is required let your instructing solicitor know this at the outset as there may be difficulty in arranging a convenient time for the client and/or the expert.
  • If asked for your opinion, give your opinion. Try not to defer giving that opinion while further information is obtained (unless it is absolutely crucial). Remember that your instructing solicitor is having to assess the strength of any claim on an ongoing basis usually with only partial information.