Access no longer denied

The Bar is changing and innovative sets of chambers now recognise that their
professional client base extends far beyond solicitors. Many accountants are
still not aware that their own profession can obtain the services of barristers
without the need to instruct a solicitor first.

The Licensed Access Rules and Recognition Regulations which confer this right
apply automatically to firms of accountants who are members of one of a number
of professional bodies.

Even firms and practitioners who are not members of any of these bodies can
apply to the Bar Council’s ‘Access to the Bar’ committee for a licence, and such
an application will be considered on its merits.

Used correctly, the ability to go direct to counsel can be a useful and
cost-saving device. But what is the right situation in which to bypass the
services of a solicitor? The key to this is an understanding of the kind of work
barristers undertake. While barristers are primarily perceived as advocates, it
is worth remembering that most are also pre-eminent in their chosen fields of
legal expertise. Specialist barristers – experienced in, for example, business
and commerce, property, fraud or international dispute resolution – can be hired
ad hoc or become part of a team led by or working alongside accountants on any
project which might benefit from their involvement.

However barristers will usually be retained for the purposes of litigation.
One particular field which can benefit from the link between accountant and
barrister is asset tracing, both within the UK and globally. Specialist
barristers experienced in the methods and procedures for seeking and tracing
assets, and recovering them, are an ideal fit with accountants instructed to
identify and recover commercial or judgment debts for their clients. Equally,
barristers can assist in protective debt management. Many are also skilled at
mediating disputes.

It needs to be understood, however, that barristers are not permitted by
their professional rules to take general conduct of litigation in the way that a
solicitor does. They are not allowed to engage in correspondence with the other
side, or to involve themselves in the investigation and gathering of evidence
for a hearing. They can however perform more discrete and self-contained tasks,
such as drafting legal documents and giving representation at a hearing. They
can also give general advice on merits, evidence and matters of strategy
generally.

Some fine distinctions are involved here, for example, a barrister can draft
a letter for a client to send but cannot send it in his own name. A barrister
can review a witness statement, or even draft a witness statement from a written
proof provided by a witness, but he cannot be involved in the process of
obtaining the evidence from the witness in the first place. These apparently
arbitrary limitations reflect the fact that it is sometimes difficult to draw
the line between what does and what does not constitute the general management
of litigation. While the barrister’s non-managerial role undoubtedly constitutes
a limitation on the scope of direct instruction, it does at least mean that fees
will be transparent and easily understood.

As to the type of case that might be appropriate for licensed access, the
first consideration must be the nature and complexity of the dispute. Where
there is voluminous documentation, a lengthy history and a catalogue of disputed
facts, it may well be that the case will benefit from the management and
day-to-day supervision of a solicitor. On the other hand, in a situation where
the subject-matter is self-contained and the issues clearly defined, or where it
is thought that a properly drafted legal document will be enough to secure the
desired result, an accountant may well wish to involve counsel directly.

Another relevant factor is the level of management and organisation the
practitioner is personally able to bring to the dispute. The more orderly and
streamlined the papers submitted to counsel, the more cost-effective direct
instruction will inevitably be.

Many accountants might feel uneasy about the process of finding appropriate
counsel, or conducting negotiations with counsel’s clerks. These need not be
daunting tasks. Word of mouth recommendation is a good way to go but, failing
that, there are numerous professional directories which can assist – Chambers
& Partners, the Bar Directory or the Legal 500 to name but three.

Once a particular set of chambers has been identified, the clerks can be
contacted by telephone or email – clerks’ rooms should be well prepared for
fielding questions from those new to the process and experienced at matching the
requirements of a particular client to a suitable barrister. So far as the
negotiation of fees is concerned, this can be done on the basis of an hourly
retainer, a fixed fee or, in the case of court hearings, a lump sum ‘brief fee’
with daily refreshers for each subsequent day of the hearing.

Whichever approach is adopted, the client should demand transparency and
should be entitled to know how much time a particular piece of work will take
and why. In deciding upon a particular set of chambers, the client may also want
to be satisfied that there is sufficient back-up should their first-choice
barrister be indisposed at any time.

Ultimately, the process should be made easier by the fact that it is in no
one’s interests for the client to be represented by the wrong barrister. Most
clerks will be at pains to ensure that the right person is found and, if the
brief is better directed to a different set or to a solicitor, will say so.
Barristers themselves are under a duty to say if they do not think they are the
right individual for a particular case, or if they think that the involvement of
a solicitor is necessary. As for fees, there is stiff competition among sets –
there can be few easier markets in which to ‘shop around’ than the Bar. And the
fact that the overheads of most chambers are lower than those of solicitors’
firms mean that clients can generally obtain a comparable level of experience at
a significantly lower hourly rate.

Many sets now see the traditional solicitor-barrister route as being only one
of many different ways to attract work. With a large number of practitioners
covering a wide range of disciplines, and an ethos of approachability which is
shared by barristers and clerks alike – many are trying hard to take the sting
and mystique out of licensed access. Accountants should also be aware that there
are benefits for clients too – licensed access is available to a growing range
of professionals. Some barristers are also qualified to accept public access,
ie. instructions from members of the public at large, irrespective of
professional qualification. Brick by brick, the walls of the ivory tower are
coming down.

Mark Hoyle and Andrew Butler are head and deputy head respectively of the
business and commercial group at Tanfield Chambers