Bar Focus | Public facing: is direct access a threat?

1 April 2013 was a momentous day for the legal profession for a whole host of reasons. On this day, whole areas of civil and family work were removed from the scope of the legal aid budget, leaving vast numbers of people now without representation before the courts. The Jackson reforms also came into force on this date, with the changes they bring to litigation primarily in the realm of personal injury law, but also in commercial disputes as well. Both changes were well publicised, and received a large amount of coverage and commentary in the legal and national press.

With all this happening at the time, it is perhaps unsurprising that one other change received far less coverage and passed by almost unnoticed. In late March 2013, the Bar Standards Board announced that from 1 April 2013, the prohibition on barristers accepting instructions directly from clients who may have been eligible for legal aid but who do not wish to pursue this option, was removed. Thus, for the first time, those clients who have been making what can amount to substantial contributions towards the cost of their defence through means testing, will now have the option to directly instruct a barrister of their choice to conduct their case on a private basis without also instructing a solicitor.

Direct access

This was announced in tandem with another change to the public access rules for barristers, which will permit barristers under three years call to also accept instructions on a public access basis. This has yet to come into force, but is expected to do so in the Autumn of 2013. Young barristers will be required to undertake a new training course to fully equip them to do such work, which will be launched at the time that the rule is relaxed.

These developments will come as a surprise to few. They are a reflection of the increasingly difficult environment in which barristers, in particular criminal barristers, work. Constant cuts to funding in legal aid cases combined with a reduction in the number of cases being charged and bought to court each year and the increased numbers of solicitor advocates appearing in the Crown Court has meant that barristers have had to be more innovative in developing and diversifying their practices. Undertaking public access work has been one such method, but it is certainly not the only one. For example it is now also becoming increasingly common for young criminal barristers to undertake secondments with various healthcare and professional disciplinary regulatory bodies, to gain exposure to other areas of work. Increasing the remit of direct access work should not be considered to be the only development.

How will these relaxations to the public access rules affect the relationship between the solicitors' profession and the bBar? And does this mean that barristers and solicitors will be increasingly going head to head for work? Although at first blush it may appear as though these relaxations represent a further blurring of the lines separating the two professions, a closer examination shows that in reality, these particular developments are unlikely to make any significant difference to the traditional referral structure.

After all, barristers who are over three years call have been able to undertake public access work since July 2004. The fact that some barristers can and do already undertake public access work (albeit hitherto not in cases where legal aid was also available) currently has not resulted in a fundamental change overall to the traditional relationship whereby solicitors refer work to the Bar. The Bar continues to be an independent referral profession, with a core interest in undertaking advocacy. The relaxation of the rule that came into force on 1 April 2013 merely extends the scope of an already existing scheme in a discreet way.

Diversifying

It is true that the numbers of people entitled to legal aid will reduce if the government's proposal to impose a financial eligibility threshold in the Crown Court in the recent consultation paper Transforming Legal Aid is introduced. Under that proposal, defendants with a disposable household income of 37,500 or more will no longer be eligible for legal aid in the Crown Court. It may be that in this proposed group of potential clients, there will be greater competition between the Bar and solicitors in cases where the client can only afford to pay for one lawyer to handle his case. With more solicitors undertaking higher court advocacy, it is perhaps no surprise that the Bar would wish to compete for such clients by accepting the client's instructions directly. However, it should be noted that the recent relaxation of the public access rules discussed in this article has no bearing on these types of cases, because barristers were already permitted to take public access cases where legal aid was not available.

Furthermore, despite the seemingly constant reductions to the criminal legal aid budget, it will still be the case that the majority of people who come before the courts in the criminal justice system are entitled to some or all of their defence costs to be met by the state. No doubt those who are able to receive some financial assistance from the state will continue to do so as long as that help is available to them.

The code of conduct makes it clear that public access instructions cannot be accepted where it is in the client's or the public interest for a solicitor to be instructed in the case. This duty applies to all public access cases. A barrister is under a duty to continuously review the decision of whether or not a solicitor should also be instructed, throughout the course of a case. Whether or not a barrister could properly accept instructions in a public access case is likely to depend on the complexities of the case and the capability of the client to undertake those aspects of the case that the barrister cannot. It is likely therefore, that public access cases will be reserved for the more straightforward cases.

The fact is that extending the scope of public access work for barristers to cover those cases where legal aid is also available and for barristers under three years call is not designed to deliberately pitch the Bar in direct competition with solicitors, and nor need it be viewed as such. This is evidenced by the fact that barristers are still prohibited from conducting litigation. The public access rules do not permit a barrister to simply replicate all of the functions of a solicitor, and nor would we wish them to. Rather, they enable the Bar to develop one of a number of new ways of working that will ensure that it can continue to operate within the traditional referral model that has served our professions, and more importantly, the public, so well in the past.