Fees
(A) Notifying the client
47. If you accept public access instructions you must forthwith notify your client in clear and readily understandable terms of the work you have agreed to perform and the fees which you propose to charge or the basis on which your fee will be calculated. You should therefore complete those parts of the model client care letter which deals with these matters.
48. rC22 and rC88 require barristers to keep adequate records to support fees charged, and to provide such records or details to clients on request. Such records should contain separate items for each piece of paperwork and, where substantial telephone advice is provided, separate items for each piece of such advice. If the client requires further detail and, notably, the exact work done and the cost of it in respect of each item involved this should be provided.
(B) Payment in advance
49. rC73 prohibits a barrister from handling client money. The associated guidance (gC106-gC107) clarifies that a fixed fee paid in advance is not client money for the purposes of rC73. If you agree with a client, who can reasonably be expected to understand the implications of such an agreement, that (1) your fee for any work will be charged according to the time spent on it, but (2) you will be paid a fixed fee in advance for it, and (3), when the work has been done, you will pay the client any difference between that fixed fee and the fee which has actually been earned, and (4) you will not hold the difference between the fixed fee and the fee which has been earned on trust for the client, that difference will not be client money. Such fees may be considered as client money if you cannot demonstrate that the agreement was made in advance and on clear terms. You should also consider carefully whether such an arrangement is in the client’s interest and that the client fully understands the implications.
(C) Withholding paperwork until paid
50. Barristers may withhold paperwork until fees have been received. We recommend, however, that it should be made clear to the client at the time of instruction that this will be the arrangement. It should be expressly stated in the client care letter. Barristers should note that while they are permitted to withhold the work they have done, they may not be permitted to withhold the client's papers.
(D) Lien
51. We are not aware of any authority by which barristers gain a general lien on documents belonging to the client until the fees are paid, although there seems to be nothing in the law to invalidate an express agreement made between a barrister and a client permitting the barrister to exercise such a lien. In the absence of a contractually enforceable lien you should return the papers to your client on request, but first ensure that you have complied with your record keeping obligations (see paragraphs 67 to 71 below).
(E) Disbursements
52. You may agree with your client that you are entitled to charge disbursements, such as travel and accommodation expenses and photocopying. This can include 16 charging for the work of a clerk, administrative assistant or paralegal. This must be agreed in advance and therefore should be included in the client care letter.
(F) Over-charging and disputes
53. It is likely that clients will, on occasion, seek to dispute the amount that is charged by a barrister or to claim that they have been overcharged. The scope for such disputes is obviously greatly reduced if there is clarity about the charging arrangements beforehand.
54. It is obviously appropriate for you to seek to resolve the dispute informally if this is possible. Otherwise two options exist: a. the client can refuse to pay and the dispute may have to be resolved by litigation; b. the client can complain to the Office of the Legal Ombudsman (“LeO”), if they consider that you have provided inadequate professional services. In appropriate cases LeO has the power to fine you and/or order that fees be repaid. Complaints may also be made to the Bar Standards Board where the alleged conduct may amount to a breach of the Handbook.
(G) Conditional Fee Agreements (CFA) and Damages-based Agreements
55. While in principle there is nothing to prevent barristers undertaking public access work on a Conditional Fee Agreement or a Damages-based Agreement, particular care should be taken with such arrangements. You should consider the level of risk and the likelihood of recovering base costs and the success fee in the case of a Conditional Fee Agreement and the likelihood of recovering the percentage of the claimant’s damages in the case of a Damages-based Agreement.
56. You should also consider the question of payment. Payment in advance or on completion of a particular piece of work would not be possible since, by definition, no fee is payable until success had been achieved. Generally, any money paid in advance would be considered client money and barristers are not permitted to hold 17 this (see paragraph 49 above for circumstances when payment in advance may be possible). If you require further advice please contact the Bar Council.
[Employment Barrister - myBarrister]