Nature and scope of public access work

8. A barrister may accept public access instructions in any area of practice. You are reminded that rC21.8 of the Handbook prohibits you from accepting instructions if you lack sufficient experience or competence to handle the matter. In a public access case you should remember that dealing directly with a client may be more difficult or demanding than acting for a professional client and you must be able to handle those demands.

9. Public access does not widen the types of work a barrister may do. You are performing the same functions as you would if you were instructed by a solicitor. Examples of the type of work you may do for a public access client are:

•  advocacy;
• drafting documents;
• advising in writing or in conference;
•  representation in alternative dispute resolution (ADR) such as mediation or arbitration;
• Negotiating on behalf of your client;
• Investigating and collecting evidence.

You should however have regard to the BSB’s ‘Guidance on Self-Employed Practice’, which is published on the BSB’s website and provides guidance on investigating or collecting evidence and taking witness statements. In particular, you must not conduct a case in court if you have previously investigated or collected evidence in the case unless you reasonably believe that the investigation and collection of that evidence is unlikely to be challenged;  Corresponding on behalf of your client. You may send letters on your Chambers’ letterhead or faxes or emails. However, you must only conduct correspondence if you are satisfied it is in your client’s best interests to do so and you have adequate systems, experience and resources for managing the correspondence (see rC130 and relevant guidance at gC24 and gC71). Bear in mind that solicitors’ offices have systems for logging incoming and outgoing correspondence and dealing with urgent letters in the absence of the fee earner which your Chambers may not be able to offer.

General restrictions

(A) Restriction on conducting litigation without authorisation

10. Public access does not put barristers on a par with solicitors. A key difference is that solicitors may conduct litigation on behalf of their client. A barrister in independent practice does not have the right to conduct litigation unless authorised by the BSB to do so. If you conduct litigation without authorisation you are not only breaching the Handbook but also committing a criminal offence under the Legal Services Act 2007.

11. The Legal Services Act 2007 defines the conduct of litigation as: a. the issuing of proceedings before any court in England and Wales; b. the commencement, prosecution and defence of such proceedings; and c. the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

12. The BSB takes the view that the following fall within this definition and therefore you should refuse to do them if you are not authorised to conduct litigation: 5  issuing proceedings or applications;  acknowledging service of proceedings;  giving your address as the address for service;  filing documents at court or serving documents on another party; and  issuing notices of appeal.

13. You may advise your client on how to take any of these steps. For example you may advise on the procedure for lodging an appeal and you may of course draft the grounds of appeal. However the steps in question must be taken by the client as a litigant in person if you are not authorised to do them. Normally public access clients who are litigants in person will be expected to be able to perform the activities usually undertaken by an authorised litigator with little or no prompting. If this is not the case you must consider whether it is proper to act on a public access basis (see paragraphs 21 to 25 below). This consideration is particularly relevant when dealing with vulnerable clients. ‘Vulnerable clients’ is interpreted widely and may include clients who have English as a second language, who have mental or physical impairments or who are otherwise vulnerable eg because of their age, caring responsibilities or immigration status.

14. Certain activities at first blush look like they might fall within the definition of conducting litigation but in fact do not. This is generally because it is work that barristers have traditionally done when instructed by solicitors. The following are therefore permissible if you are not authorised to conduct litigation:  Lodging documents for hearings. It is proper for you or your clerk to lodge certain types of documents for hearings, provided that they are ancillary to your role as an advocate. Barristers often draft the case summary, chronology, list of issues or position statement. There is nothing wrong with clerks or barristers lodging these sort of documents. However, it is likely that lodging a full trial bundle will amount to conducting litigation.  Skeleton arguments. Exchanging skeletons with an opponent or sending skeletons and bundles of authorities to the court is allowed. In a criminal case defence barristers often hand a defence case statement to the Crown or the court and this would also be permitted if instructed directly.  Covering applications to fix trial dates. Clerks regularly fix trial dates to ensure that the date is convenient for counsel instructed. This is permissible whether instructed by a solicitor and therefore also when instructed directly. 6 Clerks making representations to the Masters in relation to hearing dates is permissible for the same reasons.  Court orders. Liaising with the other side or the court over the preparation of an order is something barristers often do and is allowed. Clerks regularly deal with the sealing of court orders and so this, too, is permitted.  Discharging a duty or a courtesy to the court. For example a letter or e-mail to a judge explaining an absence from court or providing dates to avoid or corrections to a draft judgment.  Signing a statement of truth. A statement of truth may be signed by a legal representative, which is defined as including a barrister (Civil Procedure Rules Part 2.3). Therefore you may sign a statement of truth on behalf of your client (O’Connor v BSB (2012) Visitors to the Inns of Court, August 17, unrep.). However you should ensure that the provisions of the Civil Procedure Rules are complied with before you do so, in particular Part 22 PD paragraph 3.8. (B) Code of Conduct restrictions

15. The following are expressly prohibited by the Code of Conduct:  Receiving or handling clients’ money, except as payment for fees. The prohibition against holding clients’ money means that a barrister cannot make disbursements on behalf of a client, for example by paying court fees or witnesses’ expenses.(rC73-rC75, BSB Handbook).  Undertaking the general management, administration or conduct of a client’s affairs (rS25, BSB Handbook). 

[Employment Barrister - myBarrister]