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Wave goodbye to middlemen as the barrister goes public

legal matters

A recent advert at the back of Private Eye declared 'now you can instruct a barrister directly', and gave a phone number.

Although this might not have been quite what the Bar Council envisaged when it set up its new public-access scheme, writes Sue Lindsey, it accurately heralds a new era. It has for some time been possible in certain circumstances for members of some professional bodies, including architects, to instruct a barrister without going through a solicitor - this is now called 'licensed access'.

As a result of a report from the Office of Fair Trading in 2002, the door has now been opened wider. Members of the Bar are now able to take direct instruction from the public on most matters other than crime, immigration and family work.

There are still things that barristers who are directly instructed cannot do. Importantly, they cannot conduct litigation in the way a solicitor can. But for members of the public who are happy to keep tabs on the timetable the court has ordered, send their own correspondence and generally keep on top of the administrative tasks a solicitor usually performs, directly instructing a barrister might prove an attractive option.

What is more, there is nothing to stop you instructing your barrister to draft the letters you want to send or to fills out the court forms for you to sign. They can certainly attend court for you, if you want them to.

A barrister who is willing to take on a public access matter has to consider whether undertaking the work is in the best interests of the client. Many factors can come into play. For example, many construction disputes involve a lot of paperwork and organisation of witnesses and experts. The client without sufficient resources might be better off with a solicitor to carry these burdens.

The resources question also crops up in reverse. Barristers operate largely as one-man bands, so a barrister agreeing to take on a public-access matter will agree to undertake only specific tasks at any one time. There is plainly a risk that when more needs to be done at a later date, particularly if it needs doing urgently, the barrister is not available to do it. Although this might be unsatisfactory for the client who needs someone at the end of the phone at all times, it should present no difficulty for the client who wants only discrete tasks carried out.

As with most things, it is undoubtedly a question of picking the right horse for the course.

If you know there a dispute brewing that will require the undertaking of tasks beyond your internal resources, such as day-to-day administration and someone to run the litigation, or an adjudication pending that will need to be dealt with very speedily, instructing a solicitor might be the appropriate way forward.

But if you are not sure whether you have a good claim, particularly one involving a specialist area of law, you might choose to cut out the middle man and go straight to a barrister for some advice. He or she should be able to advise on the merits, and, if you want to proceed, suggest how best to go about it.

A barrister advising a direct-access client who thought instructing a solicitor was, at any stage, in the client's best interests would be obliged to say so.

The other factor to bear in mind before picking up the phone to instruct a barrister directly is the terms of any insurance you might have. Your professional indemnity insurers will have something to say if the matter concerns them, but so too might any legal-expenses insurer you have on board.

If you do decide to try out the direct-access route, the way ahead should be marked out plainly. Unlike the traditional client/solicitor/ barrister relationship, there will be a direct contract between client and barrister. This contract should spell out exactly what work is going to be carried out, and on what basis.

The scheme is still in its early days. Many chambers that want to participate are still in the process of putting in place their systems for dealing directly with the public. But if you think it might meet your needs, try it. The proof of the pudding will be in the eating.

Susan Lindsey is a barrister at Crown Office Chambers. Visit www. crownofficechambers. com

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