22 May 2017

Annexe F2 - Public Access Rules

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

1. These rules apply to barristers instructed by or on behalf of lay clients (other than licensed access clients) pursuant to paragraph 401(a)(iii) of the Code of Conduct. 

2. Before accepting any public access instructions from or on behalf of a lay client who has not also instructed a solicitor or other professional client, a barrister must:-

(i) Be properly qualified by having been issued with a full practising certificate, by having undertaken and satisfactorily completed the appropriate training required by the Bar Standards Board from time to time, and by registering with the Bar Council as a Public Access practitioner;

(ii) From 4 October 2013 a barrister must have successfully completed a training programme approved by the Bar Standards Board as valid for these purposes from that date unless:

the barrister was already registered with the Bar Council to undertake public access on that date, in which case he must undertake any additional training required by the Bar Standards Board within 24 months or cease to undertake public access work.

(iii) Take such steps as are reasonably necessary to ascertain whether it would be in the best interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client; and

(iv) Take such steps as are reasonably necessary to ensure that the client is able to make an informed decision about whether to apply for legal aid or whether to proceed with public access.

3. From 4 October 2013 a barrister with less than three years' standing (as defined at paragraph 203.2) who has completed the necessary training must:

(i) have a public access qualified person (a qualified person as defined at paragraph 203.3) readily available to provide guidance to the barrister;

(ii) maintain a log of public cases they have dealt with, including any issues or problems which have arisen (a pro forma for recording this information is included in the guidance for barristers published by the Bar Standards Board);

(iii) seek appropriate feedback from their public access clients on the service provided;

(iv) make this log available, on request, to the Bar Standards Board for review.

4. A barrister may not accept direct instructions from or on behalf of a lay client in or in connection with any matter or proceedings in which, in all the circumstances, it would be in the interests of the client or in the interests of justice for the client to instruct a solicitor or professional client.

5. In any case where a barrister is not prohibited from accepting instructions, the barrister must at all times consider the developing circumstances of the case, and whether at any stage it is in the best interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client. If, after accepting direct instructions a barrister forms the view that circumstances are such that it would be in the best interests of the client, or in the interests of justice for the lay client to instruct a solicitor or other professional client the barrister must:

(a)  inform the client of his view; and

(b)  withdraw from the case in accordance with the  provisions of paragraph 608(a) of the Code unless the  client instructs a solicitor or other professional client to  act in the case.

6. A barrister must have regard to guidance published from time to time by the Bar Standards Board in considering whether to accept and in carrying out any public access instructions.

7. A barrister who accepts public access instructions must forthwith notify his lay client in writing, and in clear and readily understandable terms, of:

(a) the work which the barrister has agreed to perform;

(b) the fact that in performing his work the barrister will be subject to the requirements of the Code of Conduct and, in particular, paragraphs 401(b), 603 (a) and 608;

(c) the fact that the barrister cannot be expected to perform the functions of a solicitor or other authorised litigator and in particular to fulfil limitation obligations, disclosure obligations and other obligations arising out of or related to the conduct of litigation;

(d) the fact that the barrister is a sole practitioner, is not a member of a firm and does not take on any arranging role;

(e) in any case where the barrister has been instructed by an intermediary:

(i) the fact that the barrister is independent of and has no liability for the intermediary; and

(ii) the fact that the intermediary is the agent of the lay client and not the agent of the barrister;

(f) the fact that the barrister may be prevented from completing the work by reason of his professional duties or conflicting professional obligations, and what the client can expect of the barrister in such a situation;

(g) the fees which the barrister proposes to charge for that work, or the basis on which his fee will be calculated;

(h) the barrister's contact arrangements; and

(i) the barristers' complaints procedure and that of the General Council of the Bar.

8. Save in exceptional circumstances, a barrister will have complied with rule 6 above if he has written promptly to the lay client in the terms of the model letter provided on the Bar Council's website.

9. In any case where a barrister has been instructed by an intermediary, he must give the notice required by rule 6 above both:

(a) directly to the lay client; and

(b) to the intermediary.

10. A barrister who accepts  public access instructions must keep a case record which sets out:

(a) the date of receipt of the instructions, the name of the lay client, the name of the case, and any requirements of the client as to time limits;

(b) the date on which the instructions were accepted;

(c) the dates of subsequent instructions, of the despatch of advices and other written work, of conferences and of telephone conversations;

(d) when agreed, the fee.

11. A  barrister who accepts public access instructions must either himself retain or take reasonable steps to ensure that the lay client will retain for at least seven years after the date of the last item of work done:

(a) copies of all instructions (including supplemental instructions);

(b) copies of all advices given and documents drafted or approved;

(c) the originals, copies or a list of all documents enclosed with any instructions;

(d) notes of all conferences and of all advice given on the telephone.

12. A barrister who has accepted public access instructions may undertake correspondence where it is ancillary to permitted work, and in accordance with the guidance published by the Bar Council.

13. Save where otherwise agreed:

(a) A barrister shall be entitled to copy all documents received from his lay client, and to retain such copies permanently.

(b) A barrister shall return all documents received from his lay client on demand, whether or not the barrister has been paid for any work done for the lay client.

(c) A barrister shall not be required to deliver to his lay client any documents drafted by the barrister in advance of receiving payment from the lay client for all work done for that client.

A barrister who has accepted public access instructions in any civil matter may take a proof of evidence from his client in that  matter.