Is direct access a help or a hindrance?

Once upon a time, direct access work did not even have a proper name. It was called ‘public access’ (PA), and was regarded as peripheral work done by people who had no ‘proper’ practice.

Today, more than ten years after its birth, direct access work is mainstream and permeates every aspect of Bar life. If, in 2004, it was something of
a new instrument, progressive composers have now found a way to incorporate it into the Bar’s orchestral sound.

Democratising effect

I wrote the first template of a direct access scheme, called direct advisory access (DAA), and presented it to the plenary Bar Council in 2000. It now seems rather tame.

Certainly, it was always intended that direct access would suit advice-giving, even though
that model was ridiculed and rejected at first by the Bar Council.

However, soon after inception of the scheme,
it became clear that contested trials could, in suitable cases, be conducted on direct access.
All it required was a well-organised client.

As recently as 2006, I conducted what was thought to be the first PA case to reach the
Court of Appeal. Others soon followed. By 2007, it became clear that PA was having
a democratising effect.

Barristers who did not, for whatever reason, get a fair crack of the whip with solicitor-instructed work, were beginning to build good practices on their own based almost entirely on direct access work. By 2008, a search of Lawtel for ‘instructed on public access’, produced a remarkable number of reported direct access cases.

In 2007, I founded the Public Access Bar Association. The Bar was waking up to the new style of working. Some of our seminars were booked out several times over. At one of them, barristers queued down three flights of stairs
to get in.

Work functions did not change, but this created an anomaly. A barrister in a PA case was not permitted to correspond directly with the other side in litigation. I made this a pet project, lobbied inside the Bar Council for a rule change and this inconsistency was eventually swept away.

The initial scheme was limited to civil work; crime, family and immigration law were excluded. These categories of work were brought within the scheme after its first review. How prescient this now seems for the Family Bar, especially given the recent, heavy attacks on legal aid funding.

Early opponents of the scheme argued that complaints against the Bar would be significantly more frequent if we accepted work from the public directly. They were wrong. Until 2011, the data that the BSB shared with the Access to the Bar Committee of the Bar Council revealed no
marked increase in direct access complaints or even that they were more prolific than other areas of practice.

Vexatious allegations

However, it is not the case any more. It has changed for the worse, and the change seems
to correspond with the creation of the Legal Ombudsman (LeO) service in late 2010 and with
a new breed of direct access client.

Ten years on, there are litigants who have learnt to play the system like never before, to search for and procure ‘something for nothing’ if they can, to use the LeO, chambers’ complaints procedures, the internet and, of course, the BSB, to waste time and cause massive disruption, harassment and damage to members of the Bar.

As someone who specialises in defending barristers and solicitors in disciplinary cases (often on direct access), the BSB and LeO do not appear to mind their processes becoming a forum for vexatious allegations.

LeO, in particular, seems to bend over backwards to accommodate the grievances of direct access clients and to sacrifice professional reputations in the name of ‘service’. There are cases that merit such remedies, but there are many that do not.

As ever, the new complaints system, in effect, punishes the innocent with its inevitable delays caused by a somewhat doctrinal and seemingly one-sided search for ‘poor service’. The fact that these enquiries are not conducted by lawyers means that the vexatiously driven direct access client may well find a sympathetic ear for any or all ills, however irrational, imagined or irrelevant.

From the Bar’s viewpoint, LeO’s approach since 2010 has made direct access work less enjoyable and much higher risk for complaints and claims.

From early 2014, barristers have been entitled to apply to conduct litigation. It was never my intention, or that of any of the ‘founding fathers’ of the public access scheme, that it should bring about fusion. But the scheme has been treated as a launch pad for fusion of the professions.

The move by the BSB towards entity regulation makes a further, dramatic broadening of the
direct access scheme not merely expedient, but inevitable.

The direct access scheme has never been embraced by solicitors. At first, we argued that it represented a new opportunity for solicitors to be brought into our cases by us. However, in reality, the majority of PA clients instruct one lawyer because they cannot afford two and no force on earth could make them instruct a solicitor.

That said, I have brought firms of solicitors into my direct access cases, which has, in turn, assisted me to develop new professional connections with solicitors.

Hands on

Having become known as ‘Mr Direct Access’, with a prolific direct access practice, my concluding remarks may come as something of a surprise. While the practices of some firms are over-rigid, for example, an unwritten rule that the barrister must not email the client, or speak to him or her directly, most modern law firms embrace a user friendly, unstuffy barrister who is ‘hands on’.

But if I had a choice between a ‘pure’ direct access case and a solicitor-instructed case, where the solicitor did not stifle my creativity, I would always choose the latter. There is no substitute
for the division of labour and pressure-relieving role of a good, experienced, dependable instructing solicitor.

It is very difficult at times to prepare a case for hearing and concurrently field dozens of emails, and even harder to draft complex submissions while also supervising bundle preparation without any possibility of delegation.

The epoch of rapid communication, the immediacy of information on the internet, cost cutting and a general lack of respect for reputations, would always have produced something resembling the public access scheme.

Overall, it has been a force for good in its first ten years, as it has enfranchised clients and barristers alike, and it will continue to have that benevolent effect. SJ

Marc Beaumont is a barrister at Windsor Chambers

---

Copyright & permissions