Guidance for Clerks Regarding Public Access Rules

This document sets out in summary form the action which should be taken by a clerk or other chambers administrator upon receiving an enquiry other than from a solicitor.

This does not aim to be more than a general guide. Circumstances in practice will vary. For instance, it is assumed for the purpose of this document that the prospective client will already know the identity of the barrister whom he wishes to instruct, although it is realised that occasionally there may be enquiries in which the prospective client seeks the clerk's advice as to a suitable barrister. It is assumed for the purpose of this document that the prospective client will initially contact the clerks, although in practice on occasions the prospective client will telephone the barrister first.

This document does not deal with obligations under the Proceeds of Crime Act or Money Laundering Regulations. Barristers do not, and cannot, delegate their responsibilities thereunder to their clerks. It will at all times be the responsibility of barristers to ensure compliance with any obligations which may arise.

This check list covers the two main types of work in which there is no solicitor:-

Licensed Access. In 1990 a number of professions were recognised as entitled to instruct barristers without a solicitor: this was at that time called “Direct Professional Access”. Accountants and surveyors are the two professions which have made the greatest use of this arrangement. In 2000 the Bar Council extended this arrangement to the members of various other groups and to various individual bodies, which in each case were granted a licence by the Bar Council for this purpose: this was then called “BarDIRECT”. All these arrangements are now called “Licensed Access”.

Public Access. Following a report from the Office of Fair Trading in 2002 the Bar Council adopted new rules which would allow any member of the public to instruct a barrister directly, whilst retaining the existing restrictions on barrister functions. In June 2004 the Secretary of State for Constitutional Affairs gave approval to this change which came into effect on 6 July 2004.

Licensed Access is, in a sense, the fast-track version of these schemes, since the clients may be expected to have a familiarity with the nature of barrister services which members of the public may not have.

A. Initial contact and acceptance of instructions

1. Ascertain whether the client contacting chambers is entitled to exercise licensed access or not. For practical purposes three categories are so entitled:-

(a) Recognised professions (formerly Direct Professional Access): a list is available here

(b) Members of organisations which have group licences (formerly BarDirect): a list is available here

If licensed access

2. If the client is exercising an individual licence, request that a copy be supplied. If the client presents himself as a member of a recognised profession or of an organisation which has a group licence, and if uncertain of client, check in appropriate professional or trade directory.

3. Place the enquiry before the intended barrister to ascertain whether the barrister considers it proper to accept the case on licensed access.

4. If the intended barrister considers it proper to accept the case on licensed access, write to client notifying that the case is accepted and the terms on which it is accepted. See requirements of Licensed Access Rules and Terms of Work. If it is wished to withhold delivery of paperwork until fee paid, set this out in letter.

If public access

5. Check whether intended barrister

(a) is over 3 years standing,

(b) has undertaken public access training

6. Place the enquiry before the intended barrister to ascertain whether the barrister considers it proper to accept the case on public access. This will include a consideration of whether the instructions involve excluded work: most criminal, family, immigration and asylum work is excluded.

7. If barrister not willing to accept, so notify prospective client. Remind barrister to keep a record of reasons for declining work.

8. If barrister uncertain whether proper to accept and wishes to have a no-fee meeting with the prospective client before deciding, arrange meeting. Write to client to ensure that the limited purpose of the meeting is understood.

9. If barrister uncertain whether proper to accept and wishes to be paid for having a meeting with the client and/or for reading documents before deciding, ensure that the barrister writes a client care letter to the client in respect of such preliminary work.

10. If and when the barrister decides to accept instructions, ensure that the barrister sends a client care letter. The clerk should assist the barrister to select an appropriate fee option, and to insert suitable figures. File letter.

11. Open case record on chambers computer.

12. Ensure client countersigns and returns a copy of the client care letter. File countersigned letter.

13. If the client is acting as an intermediary for the ultimate lay client, ensure that the barrister not only sends an appropriate client care letter to the intermediary, but also an appropriate letter to the lay client.

B. After case accepted (both licensed access and public access)

14. Notify client when paperwork done. If the fee has agreed to be time based, notify the client what the fee has come to. Record such notification on chambers computer.

15. If an agreement has been made with the client that the paperwork will not be delivered until fee paid, ensure that fee has been received before paperwork is delivered. If paperwork is delivered by e-mail consider whether it should also be delivered in hard copy form.

C. After work done (both licensed access and public access)

16. Maintain case record on chambers computer of all relevant actions and payments, as with a solicitor access case.

17. Keep in ordered filing system copies of letters to and from barrister regarding acceptance of instructions and fees.

18. Remind barrister to archive necessary papers for 7 years. This will include:

(a) all drafts and advices prepared by the barrister,

(b) the barrister’s notes of all meetings and telephone calls,

(d) identification documents if the barrister has considered work to be “relevant business” within Money Laundering Regulations.