Elizabeth Davidson: DIY legwork lightens the load
In Scotland, the Faculty of Advocates has held the line as an independent referral legal service during recent reforms.
Advocates receive instructions from a short list of authorised professionals – nearly always a solicitor. That used to be true south of the Border but the last decade has brought a “quiet revolution” as some barristers eschew the traditional pomp and ceremony of their profession to deal directly with clients – and often save those clients a packet in the process.
It began eight years ago, when the Bar of England and Wales changed its rules to allow members of the public in need of legal advice to instruct barristers directly. The process is known as direct access or public access.
Previously, prospective clients could only hire a barrister through a solicitor. Traditionally, barristers are experts in advocacy, while solicitors deal directly with the client.
There are some restrictions. The barrister must be at least three years qualified and have completed special training. A barrister cannot hold client’s money, as solicitors do, issue proceedings in court or gather evidence such as witness statements.
Nevertheless, about 5,000 barristers – about a quarter of the self-employed bar – are now trained and qualified to carry out direct access work. Barristers say they can do the work for less, as they have lower overheads. Money is saved by the clients doing their own photocopying and gathering of witness statements under the guidance of the barrister.
It has brought out the entrepreneurial spirit in some. In May, two barristers launched Advise Me Barrister (AMB), an online business that offers upfront legal advice for £150. It has more than 50 barristers on its books.
Rachel Temple, one of the founders of AMB, says part of its role is to “demystify” the law, and show it is not about “scary people in fancy dress”.
“The idea behind AMB is that it gives people a chance to dip a toe into the water and decide at an early stage how important it is for them to pursue an issue, what alternatives there are to court, and how much it is going to cost,” she explains.
“There is no distinction between what we can offer and what solicitors and chambers can offer. For a fixed fee we can give you the basics and you can make an informed decision. We can recommend solicitors if they want to pursue the matter.”
Barristers are barred by professional rules from accepting any fee for referring cases.
Temple, a family barrister at Chavasse Court Chambers in her day job, says: “People want choices, and they don’t want to be immediately committed to something outside their control. Law is a fairly foreign world and the idea of cost is at the front of people’s mind.”
Value for money is a common theme among direct-access barristers. One central London barrister said: “It is more popular with anyone who is paying with their own money.
“If people are willing to do their own running-about rather than pay a solicitor to do it then they can save two thirds of their costs. For example, a three-day trial over a contractual dispute might be about £50,000. I reckon you might get away with £20,000 if you instructed a barrister under direct access.”
Which begs the question – why isn’t everyone doing it? “People are nervous about the litigation process,” he says. “Solicitors have traditionally been the starting point. Also, direct access is not that well known and it’s not suitable for everyone.
“You have to steer the client to contact witnesses, which is fine if they know where the witnesses are. It depends on the nature of the case, and it may not be suitable if they have to try to find the witnesses and find out what they’re going to say.”
So, which areas of law work and which do not?
“It suits low-level commercial litigation that is relatively uncomplicated – involving money rather than emotions,” the barrister suggests. “I’m not sure that divorce is ideal for direct access. Solicitors are better equipped to deal with people saying how awful their ex is.
“I have done some injunctions [interdicts] under direct access, but there are often procedural difficulties with these, so they might not always be suitable. Large businesses, rightly or wrongly, will go down the solicitor route, whereas small businesses, paying with their own money, may find direct access suits them better.”
David Lewis, a barrister at Hardwicke, in London, deals with two or three direct access matters a month and is currently working on an appeal on a new point of law involving a hire-purchase dispute. He has had repeat business from five corporate direct-access clients.
“Direct access is a big success. I haven’t heard of any horror stories,” he says. “Before accepting instruction, you have to ask ‘is it suitable for one man or woman on their own?’. If a client can’t do the running around and they don’t follow instructions, it may not work so well.
“There are those that are absolutely perfectly suited for direct access. I deal with a lot of senior employees who know what they are talking about and are very capable.
“It means I can be involved at an earlier stage, which I like as I’m quite hands-on. I like clients. It suits me. We advertise on our website and we get quite a few enquiries. We do actively market it.
“Unlike the cab rank, we get complete choice over who we take on. Under the cab-rank rules, the solicitor instructs you and you take that brief whether you want it or not. That is a good system because everyone is entitled to representation – otherwise barristers would just go for the clients who are going to win. We sometimes refer work back to solicitors. There’s a little bit of quid pro quo.”
Lewis says that while 5,000 barristers are trained to do direct access not that many are actually doing it yet in practice. However, it is increasingly popular among corporates eager to cut their annual legal spend.
A survey in November 2010 by Hardwicke among corporate counsel at medium and large companies found an “exponential increase in direct instructions”, with almost one third of respondents having instructed a barrister directly in the last two years.
Nine out of ten felt they understood how to do it, and six out of ten disagreed with the stereotypical notion of barristers being out of touch with the commercial world.
Michael Todd QC, chair of the Bar Council, also expresses enthusiasm for the scheme.
“The public-access scheme has enabled consumers to access legal services in a different and often more cost-effective way,” he says. “Providing barristers with the training to offer direct access services has allowed many practitioners to market themselves to a wider potential client base. In undertaking this training, practitioners continue to invest in their futures and in the future delivery of legal services to the many who cannot otherwise afford representation.
“Innovation and an entrepreneurial approach to providing legal services are a priority for the Bar Council. Public access demonstrates the forward-thinking and continually modernising nature of the bar.”
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