Article in the Law Society's Legal Compliance Bulletin

Direct access: changing the landscape of litigation

 

While the solicitors’ profession has often seized the opportunity to diversify and embrace new areas of practice and new working methods, the Bar has behaved rather more traditionally, changing at an almost glacial pace. But now the Bar Standards Board (BSB) has finally announced that it will permit members of the Bar to conduct litigation from
6 January 2014

 

The move towards conducting litigation work has been on the table since 2010, but has only just been approved by the BSB. Quite why it has taken so long is beyond most of us and seems indicative of a regulator slow to respond to the demands of those whom it regulates. Indeed, the new regulations were announced at the beginning of August, but will not take effect until the beginning of next year.

 

There are, as always, further hoops to jump through. Barristers wishing to undertake litigation will need to apply to the BSB for an extension to their practising certificates before they are permitted to conduct litigation and there is to be a beefed-up training regime for direct professional access (DPA). Those of us currently undertaking public access work, however, will be eligible for a waiver with regards to the increased training of new applicants.

 

For me, such a move is hugely welcome and should assuage a number of concerns I have regarding the current regime. Having undertaken pupillage and steadily worked my way up the ladder of criminal defence work, I have seen the value of such work diminished and belittled by successive governments in my 15 years of practice. I never experienced the heady days of large fees for publicly funded work that those of my pupil-master’s generation enjoyed. The criminal bar has always been a vocation and we await the settlement of our fees from a cynical Justice Department more in hope than expectation. For many at the criminal bar, the erosion of proper remuneration and the concept of justice for all represent a slow death of the Bar. Many feel helpless, unable to develop a thriving practice against such odds.

 

It is fundamentally important therefore that the landscape of regulation exists to foster a new culture of entrepreneurialism in the profession. While the future of the criminal bar looks bleak, those of us who consider diversifying can look forward to increasing opportunities. It is often difficult to step out of our comfort zone and consider areas that lie outside of a regular Crown Court practice. A few years ago, I and a number of others in Argent Chambers undertook the direct access training course in order to be able to accept instructions from non- professional clients. Such work has been around for a number of years, but few barristers engaged in it and even fewer embraced it as a business model. Initially the work was limited by rules regarding a client’s ability to access legal aid, but these rules have steadily been relaxed. I saw direct access as an opportunity to build an alternative business in civil law. All of us take exams in civil law when qualifying as lawyers and I had continued to undertake small amounts of civil advocacy and drafting, despite having a predominantly criminal defence practice.

The skills are easily cross-transferable. Criminal trials increasingly require effective drafting skills, whether for complex legal arguments, or applications under the Proceeds of Crime Act 2002. I find the written skills make for very succinct, tight contractual drafting and the almost daily experience of Crown Court advocacy ought to make a criminal barrister a pretty fearsome opponent in the County Court.

 

I set about building an ancillary practice in reasonably high- volume, low-cost legal provision for members of the public. Most high-street solicitors well know what is involved in securing this sort of work, but for me it was a new and somewhat daunting prospect. I was fortunate enough to have moved to Argent Chambers a few years ago. Argent is a friendly progressive set. Despite being one of the oldest criminal sets in the country (as 2 Paper Buildings), we were in the process of moving to new premises in Bell Yard and rebranding, building teams of specialists in other areas of law. We now have teams specialising in civil and commercial work, sports law and regulatory law, as well as traditional criminal law. We have a chambers manager and a business development manager. There exists a collective will to build our own businesses as part of a bigger development in the provision of legal services.

 

The other key factor that assisted was a chance meeting with an old school friend, Paul Reilly. Paul had built his business, Media Skunk Works, as an online media company, serving some global brands. I wouldn’t pretend to understand all that his company does, but he has the ability to take a concept and create an online presence unlike anyone else. I had already decided that the way to secure work from the public was through having a website that could easily be found on Google and could be accessed simply. I had purchased a number of domains and together we set about building a brand.

 

With the internet, the most important aspect is not just to capture a lot of traffic to your website, but to be able to convert that into tangible, funded work. I purchased the domain name ‘suesomeone.co.uk’ and we built a website using that as the brand. The name is designed to catch the eye of people who are considering litigation and need assistance. It was fundamentally important that the finished site should be professional and serious, but at the same time friendly and accessible. I think we achieved that.

 

The website was initially a form of advertising, a way of reaching out to the public and conveying to them the type of work I was able to undertake. It was designed as an introduction to me and my services. I didn’t want to appeal to professional clients, rather people who could afford small amounts to instruct me directly. In that respect, it differs enormously from (I think) any other barristers’ DPA websites. I have yet to see another structured in the same way. It went live in early 2012 and now has around 3,600 visitors a month, which translates to a number of instructions a week.

 

As the work built, I became aware of some of the difficulties with DPA work and began to detest the restriction on litigation. The most important thing with such instructions is to have people who can engage the client quickly, with the minimum amount of effort to the client. I am fortunate in having a great clerking team at Argent, particularly those who have knowledge of what is required by the BSB when undertaking DPA instructions. Most of the enquiries either come to me by email from an online form, or through the potential client telephoning chambers (the number is on the website). As a self-employed barrister, I don’t have the support staff that many solicitors enjoy – no secretaries and administrative staff to deal with my work exclusively. It is really important that the client receives the letter of engagement to sign on the same day they make the enquiry. Such letters are usually scanned and emailed, with hard copies following in the post. I’m often at court during the day, so am reliant on my clerks being able to handle these aspects quickly and efficiently.

 

One restriction which presently poses few difficulties is the ban on handling client money and the fact that fees have to be paid in cleared funds before I undertake any work. With internet banking, this is easily dealt with and much of the work is for sums that do not attract the additional proofs required for anti-money laundering purposes. I find that having cleared funds up front is attractive to clients. They like the fact they won’t receive invoices for telephone calls and extra preparation after the work is complete. Of course, it is equally important to cost the work properly before providing the quote, but most clerks have decades of experience at ‘pricing up the job’. They always liaise with me if there’s any uncertainty.

 

Sometimes I find myself receiving instructions in an area that I am unfamiliar with and consequently uncomfortable acting in. Occasionally, the litigation is of a complex nature. In those circumstances, it is great to be able to pass clients on to other members of chambers, or other members of the Bar with the relevant expertise. I have also provided a number of firms who instruct me with civil clients in this way. The reciprocity engenders substantial goodwill, which always helps build working relationships. Where it is a case that is complex in nature, rather than an unfamiliar area of law, the firms often ‘brief back’ the advocacy to me.

The prohibition on litigation has been a thorn in my side since I began accepting these instructions. By way of example, I was instructed to draft pleadings and undertake the advocacy for a client who was claiming against a builder for about £50,000. I accepted separate fees for drafting and advocacy and undertook both. Once pleadings were drafted, I had to send them to him, with instructions on where to send them, what fees to pay (and to whom) and explain that I could not receive the responses, but he should forward them to me on receipt. There are ways around this. One could establish a process-serving company separately and have the client pay it to deal with the mechanics of serving the various documents, but it isn’t simple. It leaves those of us who undertake DPA work looking somewhat amateurish when compared to solicitors and appears ludicrous to the client when I cannot send and receive documents, but there is nothing prohibiting me negotiating a settlement directly. This had to change. It was untenable in the present climate.

 

One avenue open to me was to establish a limited company comprising me as a sole director, or perhaps held jointly with another person, and applying to the Solicitors Regulation Authority (SRA) to be regulated as an alternative business structure (ABS). Given the unresponsiveness of the BSB, regulation by the SRA is appealing. Unfortunately, the costs involved are quite high. The application process alone would cost upwards of £2,000. The fees seemed prohibitive, given the BSB was promising that deregulation was just around the corner. It was with a sigh of relief that I read my email from Baroness Deech stating the BSB was to follow suit.

 

This paves the way for self-employed barristers to be able to conduct litigation without the need to establish an ABS. We will need to apply for approval, but I am hopeful that the process won’t involve the sort of expense involved when an ABS applies for SRA approval. It is unclear at the time of writing whether the BSB wishes now to regulate other entities, as the SRA presently does, although that is implied in the provisional wording of the new BSB Handbook, which is subject to LSB approval. In any event, those of us at the Bar wishing to offer these services and litigate on behalf of DPA clients will soon be able to. It couldn’t come soon enough.

 

Rupert Gregory is a barrister at Argent Chambers and owner of suesomeone.co.uk.