21 January 2018

Q&As - What BSB-regulated entities can and cannot do

Can a BSB entity employ non-legal staff?

Yes.  However, in assessing the risks posed by the entity, we will consider the proposed proportion of managers to employees and the proposed proportion of authorised individuals to non-authorised individuals.  This is to ensure that the entity is at all times focussed on the provision of high quality legal services in a fair and objective way to its clients.

Can a BSB entity hold client money?

Simply put, no.  The rules apply to entities in the same way that they apply to individuals.  An entity may use third party payment services if it meets the criteria set out in Rules C74 and rC75 of the Handbook.  Detailed guidance on these rules, including what constitutes "client money" is given in gC103 - gC112 of the Handbook.

Can a BSB entity conduct litigation?

Yes.  An entity will have to apply to us for authorisation to conduct litigation, which can be done at any time.  In order to approve the application, we will need to be satisfied that the entity will have in place:

  1. at least one employee authorised to conduct litigation; and
  2. the necessary systems in place to be able to manage cases appropriately.

What is the "Cab Rank Rule" and does it apply to BSB entities?

In general terms the Cab Rank Rule is the obligation of a barrister to accept any work in a field in which they profess themselves competent to practise, at a court at which they normally appear and at their usual rates.

The Cab Rank Rule does not apply to public access instructions.  It does apply to referral instructions where a solicitor / professional client seeks to instruct a specific authorised individual within an entity (this applies to any authorised individual in the entity, not just barristers).

Can a BSB entity take pupils?

An entity can take pupils if it is authorised as an Approved Training Organisation by the BSB.  The relevant applications forms and guidance are available on our website.

Can a BSB entity provide predominantly non-reserved legal activities?

Non-reserved legal activities include arbitration, mediation, legal writing, training and lecturing. 

One of the factors which would tend to indicate that it may not be appropriate for us to regulate an entity is where specialist advocacy, litigation services or other expert legal advisory services will not be a significant part of its practice.  However, the BSB considers each application on a case-by-case basis.

Can a BSB entity be multi-disciplinary?

A multi-disciplinary practice provides reserved legal activities and other activities traditionally associated with non-legal professionals, eg accounting or financial services.  As per the Entity Regulation Policy Statement, we would not normally authorise an entity which intended to provide services that could detract from the legal focus of the entity.

Are there any rules as to what a BSB entity can be called?

You have a duty to ensure that all those engaging with the entity are clear about who is providing them with legal services.  For example, it is essential that clients know who has responsibility for their case, who they are paying and who can help them if they have any complaints.

Therefore whilst the BSB has no strict rules, you should consider whether the name you are choosing for your entity could be misleading or confusing.

Can a BSB entity operate within a chambers?

Whilst the BSB permits an entity to operate within a chambers, it is ultimately a matter for each chambers and its members to decide whether this is an arrangement appropriate for it.

Do the public access rules apply to BSB entities?

Entities and barristers within entities can provide legal services through public access as long as two conditions are met:

  1. The BSB has been informed that the entity intends to provide public access
  2. An employee or sole manager of the entity has the proper authorisation to carry out public access.

You should consider the public access rules as best practice in managing public access instructions and in particular consider:

  • if those doing public access work will be appropriately trained and / or supervised; and
  • if it is appropriate to accept instructions without a professional client.

As part of the application process we will ask any entity proposing to undertake public access work to show what systems it has in place to protect clients' interests.

If I provide legal services through a BSB entity, will there be changes to my practising status as a barrister?

When your entity is authorised, you will need to decide whether you want to:

a)    Provide legal services through the entity only, i.e. as an Employed - Manager (BSB authorised body); or

b)    Provide legal services in a dual capacity, i.e. through the entity and, in parallel, continue to work in self-employed practice.

Both are possible, but you will need to inform the Records Department of the Bar Council as soon as your entity is authorised so your decision can be reflected in your practising status.  You can contact them at Records@BarCouncil.org.uk or on 020 7242 0934.

Should you opt to practice in a dual capacity, please refer to Part 3 Section B.2, Rule S18 of the Handbook which sets out the requirements for compliance.  Importantly you will be required to have insurance arrangements in place for both the entity and your self-employed practice.