Intermediaries
57. You may find yourself asked to perform legal services by a person or organisation that is an intermediary, for the benefit of a named client. For example, an independent financial adviser may wish to take advice for a client, or arrange to have a document drafted. A son or daughter may want to instruct you on behalf of an elderly parent. A sponsor in this country may wish you to act in an immigration matter for a person who is out of the country. There is no objection in principle to a barrister accepting instructions from such an intermediary, but care must be taken in respect of a number of matters.
58. You must ensure that the intermediary is not acting, or proposing to act, as a ‘litigator’. It is a criminal offence under the Legal Services Act 2007 for an unauthorised person to act as a litigator, and a barrister who facilitated such activity might also be criminally liable.
59. You must ensure that both intermediary and client understand the true nature of the arrangement. To this end, you should send a client care letter to both the intermediary and the client. It is assumed that the intermediary will undertake contractual responsibility for your fees. If the intermediary does not wish to do so, you would be entitled to enquire why you should deal with the intermediary at all, rather than directly with the client. Model letters to both intermediary and client are on the BSB’s website at: https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handboo...
60. You should bear in mind the possibility that the intermediary may have negotiated a contingent fee arrangement with the client and the potential conflict of interest which could thus arise between the intermediary and the client. Barristers are already familiar with the risks of potential conflicts of interest between solicitors and clients where conditional fee agreements have been made. However, in the case of unregulated intermediaries you may feel that there is an even greater need to be alert to the risk that the manner in which information is transmitted to you may have been coloured by the intermediary's own commercial interests.
61. If you form the view that there is a conflict of interest between client and intermediary, for example, because the intermediary has been negligent, Core Duty 2, rules such as rC15 and rC17 and related guidance require you to consider whether it would be in the client's interest to instruct another professional, and, if you consider it would be, you must both so advise and take steps to ensure that 18 such advice reaches the client. However, it is not your duty to police the relationship between intermediary and client, which is a private matter to them.
62. Where the intermediary instructs you to perform advocacy services, for example, before a domestic tribunal or in an arbitration, you must take such steps as appear appropriate to ensure that the client does, in fact, wish you to appear for them. In many cases this will involve having a conference with the client. A barrister performing advocacy services should inform the tribunal that they are acting for their client. You have the same obligation to a tribunal to which you send a skeleton argument.
63. You must have regard to the relevant provisions of the Money Laundering Regulations (see paragraphs 72 to 75 below). Where instructed by an intermediary, you must normally follow the identification procedures in respect of the client. The only exception will be where the intermediary is a regulated professional and informs you by letter or certificate that they are a professional within the regulated sector as defined in Proceeds of Crime Act (POCA) and the Money Laundering Regulations and has carried out identification procedures
64. If you are approached by an intermediary you remain under the same obligation to satisfy yourself before accepting the case that it is appropriate to do so without a solicitor or other professional client as you would be under if you were approached by the client direct. If you are familiar with the intermediary and the way in which the intermediary operates then this will be a relevant factor, but will not obviate the need for you, in respect of each prospective case, to satisfy yourself that no solicitor is required.
65. The client care letter to the client should be sent to the client’s home or, as appropriate, business address and not to the intermediary’s address. The client’s address will therefore be one of the pieces of information which you will need before accepting instructions through an intermediary.
66. It is prohibited for you to pay or receive a referral fee to or from an intermediary, or to any other person for introducing a client or providing you with work. Full guidance on referral fees can be found at: https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handboo...
Administration and record keeping
7. When taking on public access work, Chambers need to be aware that the expectations of clients are likely to be very different from those of solicitors. They will not necessarily understand that barristers work on a different basis from solicitors and that it will not always be possible to speak directly to the barrister and 19 that there are limits to what can and cannot be done by barristers. This should be made clear at an early stage and may be something that you would want to discuss with a client at a preliminary meeting. Barristers and clerks may need to adopt a flexible approach to dealing directly with the public and keep under review whether Chambers’ administration should be adjusted accordingly.
68. In the absence of a solicitor it will be crucial for you to maintain records about your role in providing advice to the client in case questions or complaints arise afterwards. In particular, if it is not clear from other documentation, you should maintain a record of: a. the initial contact with the client; b. the work you have been asked to do; c. the dates of conferences and notes of advice given; d. records of telephone conversations and advice given; e. significant changes to instructions; and f. hearings attended and advice given. These records should be retained for at least seven years.
69. It is likely that clients will provide you with original documents. It is for each barrister to decide, in consultation with the client, whether they wish to retain those documents or work from copies. It is perfectly appropriate to charge for photocopying the documents but you should make it clear in your client care letter what the charge will be. You may also be asked to store the original documents on behalf of the client, but barristers are strongly discouraged from agreeing to do so unless retention by you is required in order to undertake litigation on behalf of the client (if you have been authorised to do so). The following matters should be kept in mind: a. the original documents belong to the client and, unless otherwise agreed (for example because a lien has been agreed), must be returned to the client on demand at any stage; b. if you agree to store original documents for the client you must keep the documents in a secure place and may be liable in negligence for failing to do so; c. it will almost always be impractical for you to store original documents for long periods of time unless your Chambers is prepared to guarantee such a 20 service even after you have left Chambers or ceased to practise. If originals are retained you should specify to the client a date by which they must be collected or will be returned.
70. In any case it is prudent to keep papers following the conclusion of the case because there might be an appeal, a complaint or an action for professional negligence. If a solicitor is instructed that obligation generally falls on the solicitor. In a public access case the obligation falls on the barrister. You must keep for a period of seven years the originals, copies or a list of all documents you have received or take reasonable steps to ensure that the client will do so.
71. Electronic storage is permissible if appropriate – you may wish to consult the Bar Council for further information on Information Security.
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