17 December 2018

Part II - Practising requirements

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

The Practising Requirements section sets out the rules governing the circumstances in which individuals may practise as a barrister, exercise rights of audience and supply legal services to the public. Part II also contains the requirement to be insured and the prohibition on barristers practising in partnership.

Quick Links

General

201. For the purposes of this Code a barrister practises as a barrister if:

(a) he supplies legal services and in connection with the supply of such services:

(i) he holds himself out or allows himself to be held out as a barrister; or

(ii) he exercises a right which he has by reason of being a barrister; or

(b) he acts as a manager of an Authorised  Body and as such is required by the rules of that body's Approved Regulator to hold a practising certificate issued by the Bar Council;

(c) and any reference to the supply of legal services includes an offer to supply such services.

202. Subject to the provisions of this Code a barrister may practise as a barrister provided that:

(a) he has complied with any applicable training requirements imposed by the Bar Training Regulations which were in force at the date of his Call to the Bar;

(b) he has complied with any applicable requirements of the Continuing Professional Development Regulations (reproduced in Annex C);

(c) he 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);

(d) he has provided in writing to the Bar Council details of the current address(es) with telephone number(s) of the chambers or office from which he supplies legal services and:-

(i) if he is an employed barrister, the name, address, telephone number and nature of the business of his employer;

(ii) if he is a manager or employee or owner of an Authorised  Body the nature of his role and the name, address, email address, telephone number and name of the Authorised Body and of its Approved Regulator. 

202A. A barrister must not carry on any reserved legal activity unless he is authorised to do so by a practising certificate issued pursuant to the Practising Certificate Rules (reproduced in Annex D).

Rights of audience

203.1 A barrister may exercise any right of audience which he has by reason of being a barrister provided that:

(a) he is entitled to practise as a barrister in accordance with paragraph 202; and

(b) if he is of less than three years' standing his principal place of practice (or, if he is practising in a dual capacity, each of his principal places of practice) is either

(i) a chambers or annexe of chambers which is also the principal place of practice of a qualified person who is readily available to provide guidance to the barrister; or

(ii) an office of an organisation of which an employee, partner, manager or director is a qualified person who is readily available to provide guidance to the barrister.

203.2 For the purpose of paragraphs 203.1(b) and 204(c)(i) a barrister shall be treated as being of a particular number of years' standing if he:

(a) has been entitled to practise and has practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Training  Regulations) or has been authorised to practise by another approved regulator;

(b) has made such practice his primary occupation; and

(c) has been entitled to exercise a right of audience before every Court in relation to all proceedings

 for a period (which need not be continuous and need not have been as a member of the same authorised body) of at least that number of years.

203.3 A person shall be a qualified person for the purpose of paragraph 203.1(b) if he:

(a) has been entitled to practise and has practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Training  Regulations) or has been authorised to practise by another approved regulator for a period (which need not have been as a member of the same authorised body) of at least six years in the previous eight years;

(b) for the previous two years

(i) has made such practice his primary occupation, and

(ii) has been entitled to exercise a right of audience before every Court in relation to all proceedings;

(c) is not acting as a qualified person in relation to more than two other people; and

(d) has not been designated by the Bar Council or Bar Standards Board as unsuitable to be a qualified person.

203.4 In relation to public access instructions, a person shall be a qualified person for the purpose of paragraph 203.1 (b) if he otherwise complies with 203.3 and is registered as a public access barrister in accordance with Annex F2.

203.5 This paragraph 203 is subject to the transitional provisions at paragraphs 1102 to 1105.

Supply of legal services to the public

204.  A practising barrister may supply legal services to the public provided that:

(a) he is practising in a way permitted by rule 205

(b) he complies with the requirements of paragraph 203.1;  

(c) he is covered by insurance against claims for professional negligence arising out of the supply of his services in such amount and upon such terms as are currently required by the Bar Council or alternatively (in the case of:

(i) an employed barrister; or

(ii) a barrister practising as a manager or employee of an Authorised  Body)

his employer or the body, as the case may be, is covered by such insurance in such amount and upon such terms as are required by the Approved Regulator of the employer or body (or if none, in such amount and on such terms as are currently required by the Bar Council); and

(d) In the case of legal services supplied pursuant to paragraph 401(a)(iii):

(i) he has been issued with a full practising certificate;

(ii) he has complied with such training requirements as may be imposed by the Bar Council or Bar Standards Board; and

(iii) he has notified the Bar Council that he holds himself out as willing to accept instructions from lay clients.

205. A practising barrister may supply legal services to the public as:-

(a) a self-employed barrister;

(b) a manager or employee of an Authorised  Body, subject to the rules of the Approved Regulator of that body;

(c) an employed barrister to the extent permitted by paragraph 502.

206.1 A barrister called before 31 July 2000 who is deemed to be practising only by virtue of paragraph 201(a)(i) in England and Wales and who does not and is not required either by the Bar Standards Board or by any other Approved Regulator to hold a practising certificate under this Code shall not be subject to the rules in this Code applying only to practising barristers provided that:

(a) If he supplies any legal services to any person:-
(i)  He provides in writing to the Bar Council details  of the current address(es) with telephone  number(s) of the office or premises from which  he does so, and:-
 (1) if he is employed, the name, address,    telephone number and nature of the    business of his employer;
 (2) if he is an employee or owner or    manager of an Authorised  Body, the    name, address, email address,     telephone number and the name of the    Authorised  Body and its Approved    Regulator 
(ii)  Unless he is employed only to offer services to  his employer or to the Authorised  Body of  which  he is an employee he (or, if he is  supplying legal  services to clients of his  employer or a  Authorised  Body of which he is  an employee)  that employer or body is  currently insured by  insurers authorised to  conduct such business  against any and all  claims in respect of civil  liability for professional  negligence arising out of  or in connection  with the supply of legal services  for at least the  first £250,000 of each and every  claim,  with an excess not exceeding £500.

(b) As to the information required by sub-paragraph (a)(i) above: (1) he first provided that information on or before 31 March 2012;  and (2) he provided a current version of that information in March of each succeeding year.

(c) Before supplying legal services to any person, employer or Authorised  Body, and when first dealing with any third party in the course of supplying legal services, he informs them fully and comprehensibly in writing (a) of his status and the fact that he does not hold a practising certificate under this Code, (b) of the relevant limitations under this Code on the legal services he may undertake, (c) that he is not fully regulated by the Bar Standards Board, and (d) of the absence of available compensatory powers for any inadequate professional service he may render.

206.2 A barrister whenever called who is deemed to be practising only by virtue of paragraph 201(a)(i) outside England and Wales, who does not and is not required either by the Bar Standards Board or by any Approved Regulator to hold a valid practising certificate under this Code and who is not subject to paragraph 4(e) of the International Practice Rules shall not be subject to the rules in this Code applying only to practising barristers provided that he complies with the provisions of paragraph 206.1.

Immigration advice and services

206A A barrister who holds a practising certificate in force on 1 April 2011, or issued after that date, is authorised to provide immigration advice and services.

Acting in a dual capacity

207. A  barrister may practice or be involved with the supply of legal services in more than one capacity only in the following circumstances:

(a) in accordance with rule 806; or

(b) after:-

(i) having notified the Bar Standards Board in writing of an intention so to do and after supplying the Bar Standards Board with such information as the Bar Standards Board requires in relation thereto; and

(ii) having agreed with each employer or Authorised  Body with which the barrister is involved a protocol that enables the barrister to avoid or resolve any conflict of interests or duties arising from practice and/or involvement in those capacities.

208. A barrister who practices or is involved with the supply of legal services in more than one capacity pursuant to paragraph 207(b) above must:-

(a)  provide a copy of each protocol required by paragraph  207(b)(ii) to the Bar Standards Board on request; and

(b)  maintain (and make available to the Bar Standards Board  on request) a record of referrals by the barrister to the  employer or Authorised Body  and of instructions  received by the barrister from the employer or  Authorised Body.

(c)  refuse to accept instructions in any case where so acting  gives rise to a potential conflict of interest.

(d)  not work in more than one capacity in relation to the  same case or issue for the same client at the same time.

(e)  disclose (or procure the disclosure by the Authorised  Body  of) the interest to the client in writing before the  barrister refers a client to the employer or Authorised  Body  or before accepting instructions from the  employer or Authorised Body. 

Ownership of Interests in Recognised Bodies

209. If a barrister directly or indirectly has an ownership interest in a Recognised Body and is in practice other than as a manager or employee of that Recognised Body, the barrister must:-

(a)  notify the Bar Standards Board in writing of the  ownership interest, at or as soon as reasonably  practicable after, the time at which that interest is  acquired or the barrister starts practising other than as a  manager or employee of that  Recognised Body,  whichever is the later;

(b)  disclose (or procure the disclosure by the Recognised  Body of) the interest to:-

(i) any client of the Recognised Body who instructs the barrister. If the barrister has the ownership interest at the time that instructions are received by him, disclosure to the client must be made prior to the barrister accepting the instructions. If the ownership interest is acquired after instructions have already been accepted, the ownership interest must be communicated at the time of, or as soon as reasonably practicable after, the barrister's acquisition of that interest and the client must be advised of their right to instruct another barrister.

(ii) any person that the barrister refers to the Recognised Body. If the barrister has the ownership interest at the time that the referral is made, disclosure to the client must be made prior to the barrister making the referral. If the ownership interest is acquired after the referral has already been made, the ownership interest must be communicated at the time of, or as soon as reasonably practicable after, the barrister's acquisition of that interest.

(c)  maintain (and make available to the Bar Standards  Board on request) a record of referrals by the barrister to  the Recognised Body and of instructions received by the  barrister from the Recognised Body.