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.