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’.
- For certain types of secondment you may have to consider the need for a dual qualification practising certificate (see rS18 of the BSB Handbook and https://www.barstandardsboard.org.uk/regulatory-requirements/regulatory-updates-2015/july-2015-issue/bsb-handbook-explained-dual-capacity-practice/).
- 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.
- Public access (or ‘direct access’): barristers wishing to take public access instructions must undertake public access training. It’s provided by the Bar Council – https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/public-access/.
- There is detailed guidance on the BSB website at https://www.barstandardsboard.org.uk/media/1670904/the_public_access_scheme_guidance_for_barristers__june_2015_.pdf.
- 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.
- Apply through Barrister Connect by completing the BSB’s self-assessment questionnaire. There is helpful guidance on the BSB website at https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/authorisation-to-conduct-litigation/. The page includes a link to a detailed guidance document on ‘litigation authorisation’.
- 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.