Direct access: A mixed blessing for barristers

Direct public access to barristers has now been available since 2004. It is fair to say that there was initially huge scepticism at the Bar about this new departure from the historical method of instruction by solicitors. Barristers had to undertake a one-day course to qualify for this work and then needed to be registered with the Bar Council before they could act directly for clients.

Take-up for the scheme was initially slow by the Bar; it is equally true that initial take-up by the public was also slow. In my view, the main reason for this was that there was very little marketing or publicity around the subject, and the public simply did not realise that the option was open to them.

The landscape has certainly changed dramatically over the last few years. By 27 January 2016, 5,315 barristers had qualified for the scheme.
In our chambers, 40 of our 57 members are qualified. Our receipts for direct access work increased by 300 per cent in 2015 compared to 2014. If taken as one collective client, this is now our second biggest source of work. As we are a common law set, we have three broad practice groups within chambers: civil, family, and crime. The breakdown of direct access instructions that we received over the last year was 81 per cent civil, 18 per cent family, and 1 per cent crime.

Administrative burden

In a difficult legal landscape, and in a time of seemingly constant government cuts in public funding, this is of course good news; however, it does present many challenges for the barristers and their clerks.

The most obvious one is the direct interface between the client and the barrister and their clerks. The administrative burden that comes with this work is much greater than with the solicitor/barrister model. Often prospective clients do
not convert into paid work, but can take up a great deal of time for clerks and counsel along
the way.

Even when clients do formally instruct counsel for a piece of work, records of proof of ID, client care letters, and money-laundering regulations all need to be dealt with. As fees are always paid in advance, clerks also have to spend time processing card payments by phone or verifying fees have been paid into chambers' central account. On the up side, cash flow is improved and there is no risk of bad debt.

Solicitor relationship

We often find that having determined the precise nature of the case and the sort of help that the client is looking for, the matter is in fact not suitable for direct access. In these circumstances, we often refer clients back to the appropriate solicitors, who then go on to instruct chambers in the matter. One such recent case involved us referring a high-value multi-track commercial dispute back to a solicitor. The solicitor then instructed senior counsel in chambers, who had initially advised the client on a direct access basis.

We have also found that sometimes solicitors who have been acting for clients (usually with limited funds) will refer them to us on a direct access basis, perhaps for a relatively short hearing, where it is more economical for the client to instruct us directly. This development surprised us, but solicitors have told us that it helps them to retain clients ultimately and offers them increased flexibility.

Another development in the market is that we frequently also find our barristers being instructed in direct access cases by legal intermediaries. Often the intermediary is a former qualified solicitor who has set up a limited company, and the client will then instruct counsel on a direct access basis, with the assistance of the legal intermediary. We find that this model of instruction works particularly well as it is the closest structure to the solicitor/barrister model that we have been used to for many years. The intermediary is generally a helpful addition, although where they have not been legally qualified, we sometimes find that this in fact muddies the waters.

While I have no doubt that most barristers and clerks would much prefer a world where all of our work came to us through solicitors, as it did in the past, this is the brave new world we find ourselves in, with all manner of challenges, and we must therefore embrace it. 

Tim Markham started his career as a clerk in 1980. He joined 5 Pump Court as first junior clerk in 1990 before being promoted to senior clerk in 1995. @5PumpCourt