When should in-house counsel go direct to barristers?
Written by Paul Wright, CEO at Quartz Chambers
When can in-house counsel instruct a barrister direct?
It’s easy to assume that every in-house lawyer knows how and when to instruct a barrister. This mini guide is intended to inform you as to when that might be most appropriate and even whether or not you’re allowed to do so. We hope that it helps.
Direct access/public access
The rules on direct access changed in 2004 meaning that in the following circumstances, the public, commercial and non-commercial organisations (and their employees, including in-house lawyers) can instruct barristers directly.
As a rule, most in-housers still instruct a barrister for large matters via their solicitors. They also don’t tend to advertise the direct route too often - for a variety of reasons, including not upsetting the applecart and not always wanting to deal with the client care side of legal matters. That’s changing and we are seeing more and more matters handled efficiently, directly and cost effectively between in-house counsel and barristers.
Why would in-housers choose to instruct a barrister directly?
There are several reasons, including:
- On large projects that require a team of expert lawyers, like a regulatory overhaul (which could include annual reviews or a mass review of all employee contracts). It doesn’t have to be contentious work for us to be available and well placed to help in-house teams. We have a great eye for technical detail and can fit in with your working plans and schedule.
- Secondments. Not everyone knows that you can ask a barrister to join you on a contract basis or a secondment instead of asking your law firms. Often, our overheads are much lower than those of solicitors, which can bring down the cost to you quite significantly, and you won’t have to worry about National Insurance, tax, pensions or HR responsibility. We tend to be deep technical experts in our areas, which makes us pretty efficient too. Secondment for block contract work tends to be more attractive to junior barristers, whilst senior barristers tend to prefer a day or two per week - barristers do like their independence, after all!
- Litigation. Major cases still tend to use both solicitors to prepare cases and barristers to act as advocates. But there are increasing numbers of cases where we represent clients directly. This can help to keep down costs, can make the process more efficient (as you have fewer parties to deal with and less duplication of effort) and give you access to the exact expertise that you need.
- To act as a sounding board and give opinions. We can provide a legal opinion which can underpin your commercial decisions. These are great for very technical points which need clearing up before you make major investments. An hour or two with a barrister with a follow up note is often a highly efficient way of getting precisely the advice you need to act.
- To give an overview of a project or dispute’s risk to litigation. A barrister will be experienced in advocacy and can work from an ‘end game’ perspective - they’re able to see the case from the end and work backwards, giving a good indication of what a judge would determine.
What are the advantages of direct access for in-house lawyers?
Along with all the reasons mentioned above, instructing a barrister directly allows you to build a relationship with a technical expert who has their finger on the pulse and knows how it may play out in court. Direct instructions mean that you can stick with the same person throughout.
Barristers tend to work on a fixed fee basis that’s agreed per item of work, and can be as much as 30% cheaper than a solicitor with the same experience (because of their lower overheads).
Once you factor in the lack of duplication of effort, the cost savings can quickly add up.
What are the restrictions on direct or public access?
The following elements are expressly prohibited by the Bar Standards Board’s Code of Conduct:
- We cannot receive or handle clients’ money, except as payment for fees. Therefore, we cannot make disbursements on behalf of a client, for example by paying court fees or witnesses’ expenses.
- We cannot undertake the general management, administration or conduct of a client’s affairs.
- We are prevented from instructing an expert witness or other person on behalf of a client, or accepting personal liability for the payment of any such person.
Many barristers (those without additional rights) are also prevented from:
- Issuing proceedings or applications.
- Acknowledging service of proceedings.
- Giving our address as the address for service.
- Filing documents at court or serving documents on another party.
- Issuing notices of appeal.
But we can advise you as to how to do these things (acting as litigant in person) or some have applied for an extension to their certificate to allow us to do these elements too.
When is it more appropriate to instruct a solicitor first?
See the above circumstances in which solicitors are often used as the first port of call for lodging and managing litigation.
Do barristers ever refuse to take on direct matters (and if so, why)?
If barristers refuse to take on a matter, it’s often because doing so would breach one of their ten core obligations under the BSB’s code of conduct. It’s possible, of course, that they are also simply too busy to handle your matter at this point in time. However, they are self employed individuals and so tend to take on work more often than not.
Do I contact a clerk if I want direct access to a barrister?
Whilst you’ll have to contact a clerk initially, you should be put in touch with the barrister swiftly to agree on the finer details. If you build up your relationship with a barrister into an ongoing retainer, then you’ll contact them for legal advice directly and only speak to their clerks for the admin elements of your matter.