Building and managing a practice at the employed Bar

How to develop advocacy skills at the Employed Bar

All barristers are subject to the same rules on compulsory training during pupillage and in the early years of practice. See the ongoing training section on the How to Conduct Yourself as a Pupil page of the Toolkit.

Employed barristers are also required to comply with the mandatory continuing professional development requirements set out at rQ132-135 of the BSB Handbook. See generally https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/continuing-professional-development/.

One of the main differences between employed and self-employed barristers is that with the principal exception of those employed by the Crown Prosecution Service, employed barristers tend not to undertake courtroom advocacy as part of their everyday job as often as their self-employed counterparts.

Partly as a result of this, there has been an increasing focus in recent years on how advocacy training can be better geared towards barristers employed in law firms, industry and government.  These barristers, whilst rarely ‘on their feet’ in court, are nevertheless called upon to present oral arguments persuasively in a variety of contexts, from speaking at board meetings to briefing Ministers and conducting advocacy before internal decision-making bodies.

Employed barristers who are due to undertake their New Practitioners’ Programme should check whether their Inn offers advocacy training specifically for the employed Bar.  If it does not, then it may be possible to be added to a reserve list at one of the Inns that does. Currently, such training is offered jointly by Middle Temple and Gray’s Inn (contact Middle Temple at the address below). Inner Temple do not do so at present, but may reintroduce it. Lincoln’s offer exercises applicable to all, including a session on tribunal advocacy.

See generally:
https://www.graysinn.org.uk/education
http://www.lincolnsinn.org.uk/index.php/education/barristers-education
http://www.middletemple.org.uk/education-and-training
http://www.innertemple.org.uk/education

Promotion within a corporate structure

Rather than rising through the ranks of pupil, junior and QC, employed barristers tend to be bound by the promotion rules of the organisation they work in (although see the section on how the Queen’s Counsel system applies to the employed Bar, below).

In law firms, this will generally mean that employed barristers are on a par with their solicitor colleagues, rising through the usual succession of roles such as associate, senior associate, partner, etc.  Similar arrangements will apply in industry.  All will depend on the particular workplace policies of the entity in question, which employed barristers should consult for specific information.

The Government Legal Service (GLS) employs both barristers and solicitors and does not distinguish between them in terms of their role or for the purposes of career progression. The specific corporate structure within which GLS lawyers operate varies from department to department; however most departments generally adopt the same system of “grades” as does the rest of the Civil Service. The numbers of lawyers working at a particular grade and their specific roles will depend upon the size and function of the department concerned, as will the criteria for promotion.

Finally, in the Crown Prosecution Service, the first level entry point for a fully qualified solicitor or barrister is the Crown Prosecutor role.  The next level is Senior Crown Prosecutor with further succession to the more specialised roles of Crown Advocate (or Specialist Prosecutor), Senior Crown Advocate and Principal Crown Advocate. Senior Crown Prosecutor, Crown Advocate and Specialist Prosecutor are on a par in terms of their job weight.

How does the Queen’s Counsel system apply to the employed Bar?

Historically, due to the extent to which applications for Queen’s Counsel (QC) were based on courtroom advocacy experience, non-CPS employed barristers have tended not to fall within the scope of the eligibility criteria.

In recent years, however, the QC application criteria have been broadened to cover more than just typical self-employed barristers, and the QC Appointments Panel Guidance makes it clear that the advocacy undertaken need not have been solely traditional courtroom advocacy:

“Advocacy includes both written and oral advocacy before the higher courts, arbitrations and tribunals and equivalent bodies. The advocacy may be in written or oral form but must relate to developing and advancing a client’s or employer’s case to secure the best outcome for the client in a dispute. That outcome may, for example, be secured through arbitration, court determination or a settlement agreement. Oral advocacy includes advocacy in a court or tribunal, mediation, arbitration or in negotiation. There is no specific requirement as to the amount of written or in-court advocacy, so long as there is sufficient evidence for the Panel to reach a conclusion as to excellence in respect of each aspect of advocacy.”

[Source: http://www.qcappointments.org/about-us/introduction/]

With this in mind, employed barristers who feel they might meet the criteria for applying to become a QC should consult with their employer to see whether an application might be supported.

See, generally, http://www.qcappointments.org/.

Financial affairs, accounting and tax for the employed Bar

Generally, the financial affairs of employed barristers are much more straightforward than those of their self-employed colleagues.  However, barristers moving from the self-employed to employed Bar should consider retaining an accountant during the transition period, as these barristers may have to continue filing tax returns for a short period following the transition.

Barristers employed under a contract of employment will normally pay tax, national insurance contributions and student loan repayments through the PAYE system, meaning these deductions are taken from their salaries automatically.

The situation will be different for those employed “under a written contract for services which is for a determinate period (subject to any provision for earlier termination on notice” (see definitions in the BSB Handbook) who may well find that they are categorised as “employed” for regulatory purposes but “self-employed” for taxation purposes.

In addition, employed barristers’ Practising Certificate Fees are also generally paid by their employers (although this must be confirmed with the relevant employer in each individual case, as it will not always apply).

Insurance is also usually arranged through the employer, but individuals need to confirm this with the particular employer in question. Employed barristers are unable to obtain cover from the BMIF.

Most employers do not pay the Bar Representation Fee.

Regulatory issues

There is useful guidance on authorisation to practise issues at: https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/practising-certificate/authorisation-to-practise/frequently-asked-questions-authorisation-to-practise-201617/

The right to conduct litigation

Employed barristers should take particular note that they may need to apply to the Bar Standards Board (BSB) for the right to conduct litigation.  What constitutes ‘litigation’ is a question of law, and is therefore not specifically defined by the BSB, but as a general rule of thumb, it will be things such as:

  • Issuing any claim or process or application notice
  • Signing off on a list of disclosure
  • Instructing expert witnesses on behalf of a lay client
  • Accepting liability for the payment of expert witnesses, and
  • Any other ‘formal steps’ in the litigation of a sort that are currently required to be taken either by the client personally or by the solicitor on the record.

Note, however, that this list is not exhaustive, and so barristers wishing to know for sure should first consult the BSB’s guidance document which can be found here, and then if necessary, consult the Bar Council’s Ethical Enquiries Service on 020 7611 1307 or email Ethics@BarCouncil.org.uk.  It should be noted that the BSB will not advise on a case-by-case basis as to whether something amounts to conducting litigation.

Employed barristers undertaking what may traditionally have been considered typical solicitors’ duties, such as issuing proceedings and generally litigating cases, should take particular note of this requirement, and check with their employer whether they need to apply. Some employers, including most government departments, have statutory cover for their lawyers to conduct litigation, but this will not be the case, for example, in many law firms. Barristers can apply online for authorisation to conduct litigation here.

Rights of audience

Employed barristers holding valid practising certificates and with three years’ standing hold all of the same rights of audience as their self-employed counterparts.  However, their employers may have policies or practices which restrict the scope of what may be available, particularly in terms of higher court advocacy.  Employed barristers should therefore check with their employer or prospective employer before seeking to exercise any of these rights.

Barristers (employed or self-employed) with less than three years’ standing may only supply legal services to the public or exercise any right of audience by virtue of authorisation by the BSB (Rule S20, BSB Handbook).  In practice what this means is to have or get full rights of audience or to supply legal services to the public, the employed barrister must be working with or have worked with a qualified person (someone who meets the definition in the BSB Handbook at Rule S22) for three years. This requirement is a relatively easy one for self-employed barristers, but much more difficult for employed barristers, especially those that work for non-authorised bodies.  The consequence of this is that if there is no one at the non-authorised body who can act as a qualified person and a newly qualified barrister goes straight into employment for that non-authorised body from pupillage, the barrister will not gain any years’ standing during that employment, and will not have rights of audience.  Without three years’ standing, the barrister will not be able to become a sole practitioner under a self-employed practising certificate or be authorised for public access.

The Civil Procedure Rules (see in particular Part 39.6) permit employees of companies who are authorised by the company and have the permission of the court to represent the company at trial. Unregistered (non-practising) barristers and employed barristers without the appropriate rights of audience may take advantage of this provision as employees of the company, provided that they do not hold themselves out as barristers.

Employment in Government Service

A barrister employed in the Government Legal Service is subject to and must have regard to the Civil Service Code and also to the Code governing lawyers in the Civil Service. A barrister employed in the CPS is subject to and must have regard to guidance issued to Crown Prosecutors by the Service.

Employers and the Code of Conduct

Occasionally, an employer may ask a barrister to do something which runs counter to the barrister’s duty under the BSB Handbook’s Conduct Rules. The Handbook is paramount. If this situation should arise, the barrister should inform the employer of its duties under the Handbook and that he cannot do anything which breaches his duty under the Handbook.  If the barrister is still concerned, he should contact the Bar Council’s Ethical Enquiry Service on 020 7611 1307 or email Ethics@BarCouncil.org.uk.

Entities

In April 2015, the Bar Standards Board authorised the creation and regulation of entities –businesses providing legal services regulated by an Approved Regulator.  An entity may be barrister-only or lawyer-owned. As at October 2015 the BSB had received interest from 158 prospective entities, and had authorised 36. 33% of these were already practising as entities. Most applications have been from single person entities in London. The BSB does not yet have power to authorise Alternative Business Structures, businesses wholly owned or managed by a non-lawyer or another company.

It is hoped that entities will provide barristers with greater flexibility and security. An entity can contract for work without the need for a professional client, and if attached to chambers, can market and bid for work and then funnel that work to members of chambers. A single-person entity is a self-employed barrister who has incorporated as a company.

A barrister who becomes an owner or manager of an entity or who is employed in an entity, whether full or part-time, must register for an employed or dual-capacity practising certificate (and put in place a protocol to avoid conflicts of interest, as required by rS18 of the BSB Handbook).

As a result, it is expected that there will be a significant increase in the number of barristers registered as employed. This may also herald the development of new policies from the regulator or government and an increase in the employed Bar’s collective bargaining power.

The employed Bar may also in future find itself instructing advocates operating as entities.

There is detailed information on the creation and operation of entities on the Bar Council website at http://www.barcouncil.org.uk/media/566988/2017_entities_guidance.pdf.

There is information on the application process on the BSB website at https://www.barstandardsboard.org.uk/regulatory-requirements/entities,-including-alternative-business-structures/application-process/.

And detailed guidance on equality and diversity principles as they apply to entities at https://www.barstandardsboard.org.uk/media/1665979/bsb_equality_rules_for_bsb_authorised_bodies_2015.pdf.

Where you can find support when things go wrong

Employed barristers should in the first instance seek help and support within the support networks of the employer organisation, such as line management chains and mentoring groups.  Many organisations will also have confidential internal reporting systems if discretion is required.

Where that is not possible, or not appropriate, there are a number of impartial third party sources of help.  For example, the Bar Council and Bar Standards Board offer ethical and other support services, and the charity Law Care offers comprehensive support for all lawyers.

See links below:

http://www.barcouncil.org.uk/supporting-the-bar/ethical-enquiries-service/
http://www.lawcare.org.uk/

There is a dedicated Bar Council Equality and Diversity helpline which can provide assistance on the equality and diversity rules in the BSB Handbook, and advice to the profession on any Equality and Diversity, parental leave or harassment issue. Phone: 020 7611 1321.

See the Wellbeing Toolkit for tips on how to manage your own stress, and who to turn to for advice.

What is an employed barrister?

The BSB Handbook defines an employed barrister as a barrister employed in either an authorised non-BSB body, a BSB authorised body or a non-authorised body “who supplies legal services as a barrister in the course of his employment.” In all cases the definition encompasses both those who are employed under a contract of employment and those employed “under a written contract for services which is for a determinate period (subject to any provision for earlier termination on notice)”. In other words, a barrister may become an ’employed barrister’ for the purpose of the Rules even if not employed under a permanent contract of employment.

All barristers, whether employed or self-employed, are subject to the Core Duties under the BSB Handbook and the Conduct Rules set out at rC1-rC72, except where stated otherwise.

Being employed by a Legal Advice Centre

Barristers who supply part time or voluntary legal services at a Legal Advice Centre (for definitions, see the BSB Handbook definitions section) are treated for the purpose of the Handbook as though they are employed by the Centre, and may be paid a salary for doing so. If they are self-employed, they do not need to apply for a dual practising certificate. The Handbook provisions are at rS41-42 and gS9-11.

Barristers who are paid to work at a Legal Advice Centre do, however, need to have a relevant practising certificate in place. They may not receive fees directly (or indirectly) from clients, and may not hold a financial interest in the Centre.

Giving free legal advice to friends and relatives

All barristers, employed and self-employed, are able to provide free legal advice to friends, relatives or charitable institutions. Free services of this sort do not constitute legal services for the purposes of the BSB Handbook (see definition 124 in the Handbook.