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New Terms of Engagement for Barristers

The Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, has agreed that the new Standard Contractual Terms will now take effect on 31 January 2013. 

New Terms of Engagement For Barristers

The Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, has agreed that the new Standard Contractual Terms will now take effect on 31 January 2013. 

The new terms were previously scheduled to take effect on 31 October 2012 but, following feedback from a range of stakeholders, the deadline was extended to enable instructing solicitors, barristers' chambers, their practice managers and software providers to adjust to the changes being proposed.  All chambers will be expected to comply with the new provisions from 31 January 2013. 

On the 27 July, the Legal Services Board consented to a change in the Cab Rank Rule of the Bar Code of Conduct to replace the current Terms of Work with new standard contractual terms.

The new Standard Contractual Terms aim to modernise the process of referral of work to barristers.  Increasingly, barristers are seeking to agree contractual terms with solicitors instead of the traditional default system of non-contractual arrangements (which in certain cases had the potential to create difficulties enforcing and recovering fees).

These terms will be replaced in the Code by the "Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised Persons 2012".

The Cab Rank Rule will be amended so that, instead of applying to the Terms of Work, it will apply to the new Standard Conditions of Contract AND to the terms which the barrister or his/her chambers have published as the barrister's standard terms. The usual exceptions to Cab Rank Rule will continue to apply e.g. not being available, being professionally embarrassed etc.

The new Standard Conditions of Contract have been drawn up so that they apply not just tosolicitors but also to all "Authorised Persons", which here refers to persons/bodies authorised by the Law Society/Solicitors Regulation Authority under paragraph 18(1)(a) of the Legal Services Act 2007.

The new Standard Conditions will NOT operate as default terms.

Barristers are still free in any individual case to agree different terms or, if they wish, to agree to no terms, and may amend the new Standard Conditions of Contract (subject of course to the Bar Code of Conduct obligations).

The Withdrawal of Credit List will be replaced by an advisory List of Defaulting Solicitors. The effect of this is that it will no longer be a Code of Conduct requirement to refuse work on credit from solicitors named on the Withdrawal of Credit List. Instead, a barrister will have the right, under the amended Cab Rank Rule, to refuse instructions on credit from solicitors named on that List if he so wishes. However, the advisory List of Defaulting Solicitors will apply only to solicitors.

The complaints procedure for the List of Defaulting Solicitors will be very similar to the present Withdrawal of Credit Scheme, except that complaints to the Bar Council can only be made in respect of non-payment of joint tribunal awards or where judgment has been given for unpaid fees arising from work carried out under the new Standard Conditions of Contract.

Under transitional arrangements, the solicitors named in the Withdrawal of Credit List will be transferred to the List of Defaulting Solicitors. Although the current Terms of Work will no longer exist when this change takes effect, complaints can continued to be made to the Bar Council in respect of work that had been carried out under those Terms of Work.

The Legal Services Board (LSB) approved a Bar Standards Board amendment to the Code of Conduct, under which the cab rank rule will apply to both the new Standard Contractual Terms and to barristers' own contractual terms, as published on their chambers website.  Previously, clients had been denied the benefits of the cab rank rule when instructions
were made on a contractual basis and this represents an important modernisation of that rule.  In all other respects, barristers and solicitors are free to negotiate such terms as they see fit.

The existing exclusions to the cab rank rule, such as conflict of interest or not being available, will continue to apply.

 

 

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