Legal: access to advice
Andrew Butler, a barrister at Tanfield Chambers, looks at how architects can access legal advice
Say the word ‘barrister’, and what image comes to mind? Most people probably regard barristers as members of a profession which is rather remote, irrelevant even. Like everyone else, the vast majority of architects probably go through their entire working lives without ever encountering or needing one.
While giving lawyers a wide berth never did anyone any harm, it is important for architects to know that the range of services barristers can offer goes rather wider than is traditionally perceived; also, that most architects and other professionals can now benefit from direct access to a barrister’s services without the intervention of a solicitor or other professional intermediary.
What services can barristers offer?
Beyond performing the traditional role of courtroom advocate, and undertaking advisory work, barristers can be and often are deployed in the context of forms of alternative dispute resolution, such as Mediations, or Arbitration. And their ability to commit complex factual or legal arguments to paper is also useful in Adjudications, or in providing an Early Neutral Evaluation if the parties to a particular dispute consider that that would be beneficial.
So there is a considerable range of services which barristers can offer. Furthermore, it is no longer necessary for architects to retain the services of a solicitor as a means of instructing Counsel. Under the Bar Council’s Licensed Access scheme, architects who are members of one of a number of professional organisations have the right to instruct any barrister directly¹. Even those who do not have membership of any of these organisations can apply to the Access to the Bar Committee of the Bar Council (0207 242 0082) for a licence to instruct direct on a case-by-case basis. As a further alternative, an increasing number of barristers are now qualified to accept instructions from non-solicitor clients under what is called Direct Public Access, without any professional membership or licence being necessary.
When might it be sensible to bypass the services of a solicitor and go to Counsel direct?
The key to understanding this is recognising 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, issue court documents, or involve themselves in the investigation and gathering of evidence for a hearing. Accordingly, where there is a need for professional help in undertaking tasks of this kind, an architect might be better advised to use the services of a solicitor, who can bring in a barrister as and when needed. But where the work required is discrete and self-contained, the documentation relatively light, or there are resources available to enable the client to have day-to-day conduct internally (with the input of the barrister if necessary), then using Licensed Access or Direct Public Access can be a sensible and cost-effective way to proceed.
Many might be deterred by the relative unfamiliarity of identifying a suitably qualified barrister or dealing direct with barristers’ chambers. These need not be daunting tasks. As to the former, word of mouth recommendation is a good way to go, but failing that there is the Bar Council, or numerous professional directories (Chambers, the Bar Directory, the Legal 500 to name but three), to provide impartial help and guidance. Almost all barristers’ chambers now also have websites, where it is possible to find out more about the relevant expertise and experience of a particular barrister.
Once a particular set of chambers has been identified, the clerks can be contacted by telephone or e-mail; clerks’ rooms these days should be well prepared for fielding questions from those new to the process, and clerks are 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, or 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. The fact that the overheads of most chambers are lower than those of solicitors’ firms means that clients can generally obtain a comparable level of experience at a significantly lower hourly rate. 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; no barrister can guarantee to be available whenever needed, and continuity of representation can be easier to achieve if a colleague from within the same set is available to step in.
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 barristers’ 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 generally say so and will often be prepared to recommend a suitable alternative. 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.
The bar has often been accused of being an ivory tower, but that structure is rapidly being dismantled; nobody should better understand that process, or be more prepared to contribute to it, than an architect!
¹The organisations in question are: (1) The Architects Registration Council of the UK; (2) The Architects and Surveyors Institute; (3) The Association of Consultant Architects; (4) The Royal Institute of British Architects; (5) The Royal Institution of Chartered Surveyors; and (6) The Royal Town Planning Institute
Situations where Direct Access might be useful
- An architect is unexpectedly served with a Notice of Adjudication under the Scheme for Construction Contracts. He/she has no experience of the process, the dispute is complicated and he may have as little as 10 days to prepare a reply. A barrister’s clerk may well be able to find a suitably qualified barrister with sufficient time to read the documents, discuss the case in conference and draft a response.
- An architect is in dispute with a client. The dispute turns on the construction of the CDM Regulations. A barrister can be instructed to advise or, if the client is agreeable, to provide an early neutral evaluation at shared expense as to which party is in the right.
- An architect in charge of a large practice wishes to ensure that his managers have understood the effect of a new employment regulation. The firm’s usual solicitor is not an expert in employment. The architect can consider going direct to an expert employment barrister to provide an advice on the regulations or even conduct a presentation to this staff.