Public funding (legal aid)

16. In each case, before a barrister accepts a public access instruction, it is a Code of Conduct requirement to: ‘Take such steps as are reasonably necessary to ensure that the client is able to make an informed decision about whether to apply for legal aid or whether to proceed with public access.’ (rC120.4, BSB Handbook)

17. If a client qualifies for legal aid it may be, and often will be, in their best interests to instruct a solicitor on a public funding basis. There may however be some situations where the client will prefer to instruct a barrister on public access – for example if their legal aid contributions would be higher than instructing a barrister 7 without a solicitor, or they want to instruct a more senior barrister, such as a QC, than they would be entitled to on legal aid.

18. It is important that the client makes an informed choice about public funding. In many cases it will be obvious from the nature of the case, or the nature of the client, that public funding is unlikely to be available. However in other cases you may take the view that it would be in the best interests of the client to explore their eligibility for legal aid. In those cases, you are likely to want to discuss this with them when you first meet and draw their attention to where they can find out more about legal aid and get help to assess their eligibility. Before accepting an instruction you will want to discuss this matter with the client to ensure that they understand the position regarding legal aid, have made an informed decision and that proceeding on a public access basis will be in their best interests.

19. Information about public funding is available to clients in the guidance for clients, which is available on the BSB’s website at: https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handboo...

20. The model client care letter (see paragraph 33 below) explains that a barrister cannot be instructed directly on a legal aid basis, gives details of how the client can find out if they are eligible for public funding and the basis on which you can advise and represent them. Writing to your client in the terms set out in the model client care letter can therefore help to demonstrate that you have covered this matter with them. 

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