CHECKLIST ON NOVEL FEE ARRANGEMENTS (“RETAINERS”)
A. INTRODUCTION
The PSC and PCCC have recently issued written guidance on retainers in the traditional sense, that is, agreements in relation to the provision of legal services by barristers that seek, expressly or by implication, to limit counsel’s freedom to accept other work.
The term is also sometimes used to describe a wide variety of novel feearrangements between barrister and solicitor or client, alternative to the traditional system of “piecework” payment for each separate matter dealt with. The Code of Conduct (para. 405) makes it clear that there is no objection in principle to such arrangements. But in practice there is a real risk that acceptance of such an arrangement will lead, directly or indirectly, to breaches of the Code in other respects.
Since the range of permitted fee/work arrangements is infinitely variable, it is not possible to give categorical guidance in advance. The secretariat and barrister members of the PCCC are always available to give specific advice to individuals, and formal application may be made for a waiver from particular provisions of the Code.
However, the following Checklist for use when considering a proposed retainer may be of assistance in directing barristers’ attention to relevant provisions of the Code, and focussing any requests for specific advice or waivers. It is aimed particularly at self employed barristers , but may also be of use to employed or non-practising barristers confronted with similar issues.
B. CHECKLIST
1.Am I being asked to provide “legal services” within the meaning of the Code?
The definition of “legal services” in Part X of the Code excludes several important areas of work, e.g. arbitration, law teaching (which might include professional training and the production of legal newsletters) and “libel-reading” for newspapers and publishers. Such excluded areas are outside the restrictions of the Code, though the fundamental principles (Part III) still apply.
2.If they are “legal services”, am I being duly instructed?
The fact that payment is by novel means does not exempt a self-employed barrister from the requirements of Para. 401(a) of the Code. The instructions must be from:
i.a solicitor or other professional client
ii.a Licensed Access client
iii.or a lay client under the Direct Access rules
and in each case the relevant rules must be duly complied with.
3.Are the “legal services” requested of me ones a self-employed barrister is permitted to provide?
This is a very common source of problems, since solicitors and corporations have been known to treat junior members of the practicing Bar as a species of “paralegal”. The key provision of the Code is 401(b), which prevents a self-employed barrister from (among other things):
i.managing or administering a lay client’s affairs
ii.conducting litigation or inter partes work including correspondence
iii.investigating or collecting evidence.
A barrister considering a proposed scheme of work will therefore need a clear statement of the legal services expected from him, and must be alert to any subsequent expansion into prohibited areas.
4.Am I being asked to provide legal services to the general public on another person’s behalf?
Para. 205 of the Code prohibits a practising barrister from supplying legal services to the public through or on behalf of any other person, firm or corporation. ( Employed barristers are covered by Para. 502.)
A self employed barrister cannot, therefore, advise the public direct pursuant to a fee arrangement with a solicitor or claims handler which treats those members of the public as its clients not the barrister’s.( A barrister may deal direct with the public via a law centre, if it is an scheme duly approved by the Bar Council.)
5.Is the basis of remuneration proposed a permissible one?
Para. 405(b) permits any basis of payment except a “wage or salary”. The line between a wage or salary, and the acceptable practice of payment by the hour or day for performance of a particular professional task, is not always a clear one; but the nearer a self-employed barrister feels himself coming to the position of an employee, attending at a certain place for a fixed payment in return for doing whatever is asked of him, the more likely he is to be in breach of 405(b).
6.Am I being asked to practise from the offices of, or in association with, a non-barrister?
This is prohibited by Para. 403.1.
A practising barrister must have his own place of work. He may visit the offices of his solicitor or client for specific work purposes, but he must not practise from them. Nor may he engage in work practices which effectively mean that he is practising in association with the person paying the retainer.
7.Is the remuneration proposal compatible with the professional independence and standards applicable to a self-employed barrister?
The fact that a barrister is working under a novel, rather than a conventional, remuneration system does not absolve him from his obligations under Para. 104(a) (complete independence in conduct and professional standing), Para. 306 (individual and personal responsibility for all work), Para. 307 ( avoidance of compromising situations) and Para. 701(b) (refusal of work one does not have the competence, time or opportunity to discharge satisfactorily).
Barristers must be alert to the risk that an unconventional remuneration system (particularly one involving the risk of having to do a large amount of work at short notice for a low flat fee) may lead them into difficulties with maintaining the same high professional standards that would be applied to other work and also to the risk that the paying party may encourage them to cut corners to an unacceptable degree.
8.Am I permitted to act against the person paying me?
As a general proposition, the Cab Rank rule (Paras. 602 and 603) applies in the same manner, however the barrister is being paid. One is obliged to accept instructions to act against an existing or former client unless one of the exceptions in the Code applies. The barrister must consider in each case whether there is a real risk of a conflict of interest, or of breach of confidence, and should disregard any prejudice to his personal interests that accepting the brief will cause.
(Having said this, in many cases the fact of the relationship will be a strong indication of a prospective conflict, or at least of the appearance of prejudice to independence or justice (Para. 603(d)). If in doubt, consult the fuller guidance on retainers referred to at (A) above,and seek the advice of a senior colleague or the PCCC.)
9.Am I properly insured for the work covered by the retainer?
It will always be prudent to check with BMIF that the work is covered by one’s general policy of professional indemnity insurance, and if not to ensure that adequate alternative cover is in place. Failure to do so not only exposes a barrister to substantial liability but may also be serious professional misconduct.
Professional Standards Committee
Professional Conduct and Complaints Committee
MARCH 2005
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