21 January 2018

Part IV - Self-employed barristers

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.

This section concerns self-employed barristers only. It provides for the circumstances in which they can accept instructions. This section also contains further rules governing insurance, the duties of barristers and heads of chambers to administer their practice efficiently, and the rules about fees.

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 Instructions

401 A self-employed barrister whether or not he is acting for a fee:

(a) may supply legal services only if appointed or instructed by a Court  or if instructed:1

(i) by a professional client; or

(ii) by a licensed access client, in which case he must comply with the Licensed Access Rules (reproduced in Annex F1); or

(iii) subject to paragraph 204(c), by or on behalf of any other lay client, in which case he must comply with the Public Access Rules (reproduced in Annex F2); or

(b) must not in the course of his practice, except as permitted by the Public Access Rules:

(i) undertake the management administration or general conduct of a lay client's affairs;

(ii) conduct litigation (for example issuing any claim or process or instructing any expert witness or other person on behalf of his lay client or accepting personal liability for the payment of any such person) and must not conduct correspondence or other work involving other parties save as permitted by rule 401A below.

(iii) conduct a case in court if the barrister has previously investigated or collected evidence for that case unless the barrister reasonably believes that the investigation and collection of that evidence  is unlikely to be challenged.

(iv) attend at a police station without the presence of a solicitor to advise a suspect or interviewee as to the handling and conduct of police interviews unless the barrister has complied with such training requirements as may be imposed by the Bar Standards Board in respect of such work.

(v) act as a supervisor for the purposes of section 84(2) of the Immigration and Asylum Act 1999.

(vi) Conduct in court any criminal proceedings in which the barrister has attended at a police station for any defendant in connection with those proceedings or any associated proceedings unless the barrister reasonably believes that nothing said, done, heard or seen by the barrister at the police station might require him/her to give evidence in those proceedings.

Conduct of correspondence

401A.1    If instructed to do so, a self-employed barrister may conduct  correspondence with other parties (in the form of letters, faxes,  emails or the like) provided that the barrister:

(a) is satisfied that it is in the lay client's best interests that    the barrister does so and that he has adequate systems, experience and resources for managing appropriately such correspondence; and;  

(b) has adequate insurance cover in the event that the lay client suffers any loss arising from the conduct of the correspondence for which the barrister is responsible.

401A.2   Where a barrister conducts such correspondence and is aware that another party has a solicitor or barrister representing that party, the barrister must not correspond directly with that party.

Insurance

402.1 Every self-employed barrister (other than a pupil who is  covered  under his pupil supervisor's insurance) and a barrister called  to the Bar under Regulation 78 of the Bar Training  Regulations must be entered as a member with BMIF.

402.2 Every barrister entered as a member with BMIF shall:

(a) pay immediately when due the appropriate insurance premium required by BMIF for the purpose of insurance against claims for professional negligence for such amount and upon such terms as may be approved by the Bar Council from time to time;

(b) supply immediately upon being requested to do so such information as BMIF may from time to time require pursuant to its Rules.

Administration and conduct of self-employed practice

403.1 Except as permitted in paragraphs 403.2 and 403.3, a self-employed barrister must not share office facilities or other premises and must not practise in any association with any person other than a self-employed barrister or any of the following:

(a) a registered European lawyer;

(b) subject to compliance with the Foreign Lawyers (Chambers) Rules (reproduced in Annex H) and with the consent of the Bar Standards Board a foreign lawyer;

(c) a non-practising barrister

(d) a person who is:

(i) a lawyer from a jurisdiction other than England and Wales;
(ii) a retired judge; or
(iii) an employed barrister

to the extent that that person is practising as an arbitrator or mediator.

403.2 A self-employed barrister:

May share office facilities or other premises with any person or  persons (not falling within 403.1 above) and will not be treated as  thereby practising in breach of rule 403.1, provided that:

(i) there is complete separation of the services provided by the barrister and the services provided by any person with whom the barrister shares the office facilities or premises;

(ii) nothing is done that might reasonably create the impression that there is any sharing of work, income or profits of the businesses;
        
(iii) the barrister has effective arrangements in place to protect the confidentiality of clients' affairs;
 
(iv) there is no general referral arrangement or understanding between the barrister and the person or persons with whom the barrister is sharing; and

(v) prior notification in writing of the sharing, identifying the premises in question and the names and occupations of the persons or body with whom the barrister is sharing, has been given to the Bar Standards Board by the barrister.

403.3 The restrictions in paragraphs (i), (ii) and (iv) in paragraph 403.2  shall not apply where  barristers share premises with any  entity  which is controlled by them and used as  permitted for the   purposes of and ancillary to their practice as self-employed  barristers.

403.4 Where a self-employed barrister shares premises with other  persons under paragraph 403.2, the barrister must keep  available for inspection by the Bar Standards Board a record of any work or  clients referred to the barrister by any such persons or referred to  any such persons by the barrister, and of the reasons for any  referral made by the barrister.

403.5  A self-employed barrister:

(a)  must take all reasonable steps to ensure that:

(i)  his practice is efficiently and properly administered having regard to the nature of his practice;

(ii)  proper records are kept;

(b)  must have ready access to library facilities which are adequate having regard to the nature of his practice; 

(c)  must have regard to any relevant guidance issued by the Bar Council and Bar Standards Board including guidance as to:

(i)  the administration of chambers;

(ii)  pupillage and further training; and

(iii)  good equal opportunities practice 

(d)(i)  must deal with all complaints made to him promptly, courteously and in a manner which addresses the issues raised;  and

(ii)  must have and comply with an effective written complaints procedure and make copies of the procedure available to a client on request; and

(iii) meet all the requirements set out in Annexe S to the Code.

Heads of chambers

404.1 The obligations in this paragraph apply to the following members of chambers:

(a) any barrister who is head of chambers;

(b) any barrister who is responsible in whole or in part for the administration of chambers;

(c) if there is no one within (a) and (b) above, all the members of the chambers.

404.2 Any person referred to in paragraph 404.1 must take all reasonable steps to ensure that:

(a) his chambers are administered competently and efficiently and are properly staffed;

(b) the affairs of his chambers are conducted in a manner which is fair and equitable for all barristers and pupils;

(c) proper arrangements are made in his chambers for dealing with pupils and pupillage and, in particular,

(i) that all pupillage vacancies are advertised in the manner prescribed by the Bar Council;

(ii) that such arrangements are made for the funding of pupils by chambers as the Bar Standards Board may by resolution from time to time require;

(d) all barristers practising from his chambers whether they are members of the chambers or not are entered as members with BMIF and have effected insurance in accordance with paragraph 402 (other than any pupil who is covered under his pupil-master's insurance);

(e) all registered European lawyers and all foreign lawyers in his chambers comply with this Code to the extent required by the Registered European Lawyers Rules (reproduced in Annex B) and the Foreign Lawyers (Chambers) Rules (reproduced in Annex H);

(f) fee notes in respect of all work undertaken by all members of chambers and pupils and (unless expressly agreed with the individual) former members and pupils of chambers are sent expeditiously to clients and in the event of non-payment within a reasonable time, pursued efficiently.

(g) every barrister practising from his chambers has a practising certificate issued by the Bar Council (acting by the Bar Standards Board) pursuant to the Practising Certificate Rules (reproduced in Annex D).

404.3 In carrying out the obligations referred to in paragraph 404.2 any person referred to in paragraph 404.1 must have regard to any relevant guidance issued by the Bar Council and Bar Standards Board including guidance as to:

(a) the administration of chambers;

(b) pupillage and further training; and

(c) good equal opportunities practice in chambers 

Fees and remuneration

405 Subject to paragraph 307 a self-employed barrister may charge for any work undertaken by him (whether or not it involves an appearance in Court) on any basis or by any method he thinks fit provided that such basis or method:

(a) is permitted by law;

(b) does not involve the payment of a wage or salary.

406.1 A self-employed barrister who receives fees in respect of work done by another barrister must himself and without delegating the responsibility to anyone else pay forthwith the whole of the fee in respect of that work to that other barrister.

406.2 Subject to paragraph 805 a self-employed barrister who arranges for another barrister to undertake work for him (other than a pupil or a person who has asked to do the work in order to increase his own skill or experience) must himself and without delegating the responsibility to anyone else:

(a) pay proper financial remuneration for the work done;

(b) make payment within a reasonable time and in any event within three months after the work has been done unless otherwise agreed in advance with the other person.

Client money securities and other assets

407. A self-employed barrister must not receive or handle client  money securities or other assets other than by receiving payment  of remuneration.

Equality and Diversity

408      A self-employed barrister must take reasonable steps:

408.1   to ensure that in relation to their chambers:

(a) there is in force a written statement of policy on equality and diversity; and

(b) there is in force a written plan implementing that policy.

408.2   to ensure that their chambers complies with the following requirements:

Equality and Diversity Officer

(a) Their chambers must have at least one Equality and Diversity Officer.

Training

(b)  From 1 January 2013, the member with lead responsibility for any committee or panel responsible for the selection of members of chambers, pupils, clerks or assessed mini-pupils and at least one member of the selection panel, who may be the same person, must have received recent and appropriate training in fair recruitment and selection processes, except in unforeseen and                   exceptional circumstances.

(c) From 1 July 2014, save in exceptional circumstances, every member of all         selection panels involved in the recruitment of members, pupils, clerks and           assessed mini-pupils must be trained in fair recruitment and selection         processes.

Fair and Objective Criteria

(d) Their chambers' recruitment and selection processes must use objective and     fair criteria.

Equality monitoring

(e) Their chambers must regularly review:

(i) the number and percentages of staff, barristers, pupils and assessed               mini-pupils from different groups;

(ii) applications for assessed mini-pupillage, pupillage, staff and                   membership of chambers;

(iii) the allocation of unassigned work.

This review must include:

(i) collecting and analysing data broken down by race, disability and gender;

(ii) investigating the reasons for any disparities in that data; and

(iii) taking appropriate remedial action.

Fair Access to work

(f) The affairs of their chambers must be conducted in a manner which is fair and   equitable for all members of chambers and pupils. This includes, but is not         limited to, the fair distribution of work amongst pupils and members of chambers.

Harassment

(g) Their chambers must have a written anti-harassment policy which must:

(i) state that harassment will not be tolerated or condoned and that                    employees, members of chambers, pupils and others temporarily in                      chambers such as mini-pupils have a right to complain if it occurs;

(ii) set out how the policy will be communicated;

(iii) set out the procedure for dealing with complaints of harassment.

Parental leave

 (h) Their chambers must have a parental and adoption leave policy which covers:

(i) The right of a member of chambers to return to chambers after a                   specified period (which must be at least one year) of parental or adoption leave:           

(ii) The extent to which a member of chambers is or is not required to         contribute to chambers' rent and expenses during parental leave. This               includes, but is not limited to, the method of calculation of any waiver,                 reduction or reimbursement of chambers' rent and expenses during parental leave;

(iii) The procedure for dealing with grievances under the policy;

(iv)Chambers' commitment to review regularly the effectiveness of the                  policy.

Rent

(i) Where rent is paid on a flat rate basis, their chambers must offer members       taking a period of parental leave, or leave following adoption, a minimum of 6     months free of chambers' rent.

Flexible Working

(j) Their chambers must have a flexible working policy which covers the right of        a member of chambers to take a career break, to work part time, to work              flexible hours or to work from home to enable them to manage their family          responsibilities or disability and remain in practice.

Reasonable Adjustments Policy

(k) Their chambers must have a reasonable adjustments policy aimed at               supporting disabled clients, barristers and visitors to chambers.

Appointment of Diversity Data Officer

(l) Their chambers must have a Diversity Data Officer (DDO).

(m) Their chambers must provide the name and contact details of the DDO to the Bar Standards Board (BSB) and must notify the BSB of any change to the               identity of the DDO, as soon as reasonably practicable. 

Responsibilities of Diversity Data Officer

(n)The DDO shall comply with the requirements in relation to the collection,         processing and publication of Diversity Data set out in the paragraphs (o) to (t) below.

Collection and Publication of Diversity Data

(o) The DDO shall, invite the Members of the Workforce to provide Diversity          Data in respect of themselves to the DDO using the model questionnaire at          Annex C of the BSB Guidance on these rules.

(p) The DDO shall ensure that such data is anonymised and that an accurate and updated summary of it is published on chambers' website in the first instance by 31st December 2012 and thereafter every three years. If the chambers does not have a website, the DDO shall make such data available to the public on request.

(q) The published summary of anonymised data shall:

(i) exclude Diversity Data relating to the characteristics of sexual orientation and religion or belief, unless there is consent from each of the Members of the workforce; and

(ii) exclude Diversity Data in relation to any characteristic where there is a             real risk that individuals could be identified, unless all affected individuals consent; and 

(iii) subject to the foregoing, include anonymised data in relation to each              characteristic, categorised by reference to the job title and seniority of                  the Members of the Workforce.

(r) The DDO shall:

(i) ensure that chambers has in place a written policy statement on the                  collection, publication, retention and destruction of Diversity Data                        which shall include an explanation that the provision of Diversity Data is voluntary;

(ii) notify the Members of the Workforce of the contents of the written                   policy statement; and

(iii) obtain explicit consent from individual Members of the Workforce to the provision and processing of their Diversity Data in accordance with the written policy statement and these rules, in advance of collecting their Diversity Data.

(s) The DDO shall have effective systems and controls in place to ensure that        any Diversity Data provided to the DDO is collected and held securely and in          accordance with the Data Protection Act 1998.

(t) The DDO shall take all reasonable steps to ensure that the Diversity Data is      not shared with any third parties except as permitted under these rules.

409. For the purposes of rule 408, the steps which it is reasonable for a barrister to take will depend on all the circumstances, which include, but are not limited to:

(a) the arrangements in place in their chambers for the management of               chambers; and

(b) any role which they play in those arrangements.

 

 1 paragraph 401(a) amended 25 January 2011