Rights to Conduct Litigation for Employed Barristers
Click here to download Checklist for Supervised Practice in Word format.
Click here to download Application for Waiver Form in Word format.
The Lord Chancellor has now approved the amendments to the Code of Conduct which will allow employed barristers to exercise rights to conduct litigation, provided that they comply with the provisions of the Employed Barristers (Conduct of Litigation) Rules. This will enable employed barristers complying with the rules to be authorised litigators for the purposes of the Courts and Legal Services Act 1990 and to undertake work reserved to employed litigators, for example, issuing proceedings and going on the Record. The basic requirements of these Rules are as follows:
1. In order to be authorised to conduct litigation, a barrister must be entitled to practise as a barrister. Employed barristers are entitled to practise as barristers as follows:
- If called before 1 January 2002, they are employed to supply legal services to their employer only
- If called after 1 January 2002, they are employed to supply legal services to their employer only and have completed pupillage
- If they are employed to supply legal services to the public (e.g. in a solicitors' office or by a foreign lawyer), they have completed pupillage and satisfied the requirements of paragraph 203.1 of the Code of Conduct with respect to working with a qualified person for advocacy
All such barristers will need a practising certificate.
2. Assuming he complies with (1), an employed barrister must first undertake (or have undertaken during pupillage) 12 weeks supervised practice with a "qualified person". A "qualified person" for the purpose of rights to conduct litigation is defined in the Rules as someone who:
- has practised as either a solicitor or a barrister for at least 6 of the previous 8 years
- has made practice his primary occupation and been entitled to exercise a right to conduct litigation in relation to every Court and all proceedings for the previous 2 years
- is not acting as a qualified person in relation to more than two other people
3. During the period of supervised practice a checklist must be completed and then returned to the Education & Training Department of the Bar Council so that authorisation can be confirmed. A copy of the checklist is attached.
4. Supervised practice can be undertaken as part of pupillage. The checklist will then be completed alongside the normal pupillage checklist and the barrister will be authorised to conduct litigation once he receives the full qualification certificate.
5. A barrister may apply for exemption from the requirement to undertake the supervised practice on the basis of previous litigation experience. An application form for waiver is attached.
6. Once authorised, the barrister will only be able to exercise his rights to conduct litigation if he is practising as an employed barrister. It will not be possible for him to carry the rights with him into independent practice.
7. An employed barrister supplying litigation services to the public (i.e. in a solicitor's office or law centre) must work with a "qualified person" (as defined above) for his first three years of being authorised to do so.
8. A barrister supplying litigation services to his employer only must work with a "qualified person" for his first year of being authorised to do so.
9. If a barrister exercising a right to conduct litigation is required to undertake CPD by the Continuing Professional Development Regulations, he must satisfy at least 6 hours of that requirement by means of litigation courses during each of the first three years that he exercises the right. If such a barrister becomes subject to those requirements in the course of the first three years of exercising that right, he must satisfy at least 6 hours of that requirement by means of litigation courses for each of the remaining years until the first 3 years have elapsed. Details of such courses can be obtained from the Continuing Education section of the Education and Training Department.
10. Employed barristers acting as litigators are still prohibited from handling clients' money. This should not affect the majority of employed barristers who would only handle money belonging to their employer or will be doing so in a solicitor's office regulated under the Law Society's rules, but if there are barristers who find that this prohibition affects them, they should contact the Bar Council, since the Bar Council has undertaken to review this issue in due course.
11. So far as we are aware, undertakings made by barrister litigators are not enforceable by the courts in the same way as those of solicitors. A barrister who is in breach of an undertaking will obviously be in breach of the Code of Conduct and, thus, subject to disciplinary proceedings, but barristers should not suggest to their opponents that an undertaking from them will be treated by the court in the same way as that from a solicitor.
12. The fact that a barrister may hold a right to conduct litigation does not of itself grant any right of audience
