Marc Beaumont, Barrister - Blog site

MARC BEAUMONT asks for the Bar to be consulted about regulatory reform.

The Bar Complaints system is undergoing major change.  The portal for all complaints is now the Legal Ombudsman Service (LeO). It is too early to pass comment on the efficacy and fairness of that new regime. However, in anticipation of a handover, the BSB has created a 12 month time limit in place of the 6 month limit and, moreover, has totally abolished the office of the Lay Complaints Commissioner.

One can well understand the perfect logic behind this. Why have a lay Commissioner when the new LeO system is itself a lay portal ? Why have a 6 month time limit for conduct complaints to the BSB, when LeO may itself take 6 months to deal with the non-conduct/service limb of the complaint.

However, would the Bar not have wished to comment on these changes and to suggest ways of ensuring that there is full and effective screening of complaints within the BSB, that there is a system for killing off vexatious complaints at source, that no one person in the BSB becomes all-powerful, that no Barrister is oppressed by a complaint, when he can barely recall the case ?

These are vital issues and yet the BSB omitted to consult the Bar on two changes that could impact on Barristers' professional lives for many years to come. The 6 month rule was the product of considerable work by a Bar working party, and yet the BSB has abrogated it in one stroke of the regulatory pen. As lay Commissioner, the excellent Mike Scott (a Falklands war veteran), must have saved many a Barrister from months of anguish by dismissing utterly hopeless complaints in limine. His successor, Rob Behrens, produced a brilliant paper on systemic reform and, to his great credit, was willing to listen to the Bar before imposing new rules or practices.

There are in fact a number of other important issues that require debate.  I wrote about some of these in The Barrister in January 2010. I held a PABA seminar in October 2010 on such issues.  As the seminar demonstrated, the Bar wishes to discuss reforms of its complaints processes. Most Barristers are thoughtful and constructive about these issues. To the BSB we say, do please speak to us. We wish to help you to regulate us, but please be fair and open. Before making sweeping changes in future, we do please ask you to consult with us.

MARC BEAUMONT URGES BIG BUSINESS TO INSTRUCT BARRISTERS DIRECTLY

Marc Beaumont’s address at

“City Week”

21st September 2010,

City of London. 

 

I am here to tell you a secret.  To tell you about a rather well kept secret.

I am afraid that this secret is not about Naomi Campbell, Tony Blair or The Duchess of York.

But so coy have we English Barristers been about this particular secret, that most businessmen have no inkling of it at all.

This secret reduces legal costs by as much as 70 per cent.

This secret involves a new way of tapping into excellence in the delivery of legal services in this country.

This secret gives you easy and informal access to a wealth of legal expertise

So what is the secret ?    -

It is the Bar Direct Access scheme, or otherwise known as, the Bar Public Access scheme

Since 7/2004, UK businesses have been able to instruct English Barristers directly.

The scheme has been a tremendous success across the country.  Small and medium sized businesses and individuals have all used the scheme and for such clients it is now entirely unremarkable and conventional for them to do so.

 But to big business, we are, as I say, a surprisingly well-kept secret.

This scheme is ground-breaking in England due to our split system of Barristers and Solicitors.

Before 2004, with some exceptions, if you wanted to instruct a Barrister you had to instruct a solicitor to instruct the Barrister for you.

That traditional system can, however, lead to double-manning, disproportionate expense and an artificial barrier to the gaining of expert legal advice.

The English Bar in general (and the London Bar in particular), is a truly remarkable resource of legal skills, knowledge and experience. It contains men and women who are wise advisers, shrewd tacticians, courageous gladiators and, when the occasion commands it, inspiring orators.  

The Barristers on this panel, for example, variously practise in areas such as energy law, Banking, Competition law, Construction law and regulatory and professional disciplinary work.  All of the Barristers on this panel are to some extent, commercial dispute resolution specialists.  

My Bar Association – PABA - thinks that your businesses ought to know that there is this remarkable resource directly available to any organisation that is unfortunate enough to be engaged in a legal dispute.  

And in many cases, you can and should come to us directly for advice before you are engaged in a legal dispute, or in order to avoid a dispute escalating into litigation.

Big business now needs to realise that it can think “Barrister first” and that, wherever you are located in the world, we are only an internet search, an e-mail or a telephone call away.

But are we just another group of financially motivated   lawyers ?  No.  Within the English Bar there is a culture of independence.  Advice is given because it is the correct advice, not because it will perpetuate a dispute, or serve to employ a whole team of lawyers for a few months more, or to drive up costs for the benefit of the lawyers.

I have been doing this job for 25 years and I can safely say that 99 per cent of Barristers in England & Wales do not give advice tailored to serve their own interests.

Does it matter where you are located ? Ans -  No.  If you are instructing the Bar from abroad, you will do so under the Bar’s IPRs. The Barrister can offer advisory and drafting services under those rules, but the Barrister cannot then act in court under those rules.  But that does not matter any more, because the Barrister can then switch to the Public Access regime and act for you in court in England on the basis that your organisation then becomes a direct PA client. The net effect, is that we now have a system of international direct access to the English Bar.

When you instruct a Barrister on a direct basis, he or she will direct operations. The Barrister in a direct access case can be rather like a project manager. He or she will suggest which other advisers, if any, ought to be brought into the case, whether these be expert witnesses, or even a solicitor, if a solicitor is required, which will not nowadays invariably be the case. In many cases, an array of advisers and support staff will not be necessary and very substantial costs savings will thereby be made.

And under the PA scheme, you will also retain the control and management of your dispute.  

So, at long last, the English Bar’s secret is out - the cat is very much out of the bag.

In conclusion, whilst we have this rather odd, split system of Barristers and Solicitors in England, there is no longer any obvious order in which these legal professionals should be instructed.

And since in many situations the Barrister will possess the real expertise, it makes perfect commercial sense for your business to instruct the Barrister first, before instructing any other professional. 

 

Marc Beaumont asks: what exactly is a "Professional ?"

An amateur sportsman might tell you that a professional is someone who performs a skilled craft full-time and for payment. But that materialistic notion does not fully capture the definition.

A Silk who prosecutes other lawyers recently remarked that a legal professional is someone who, when asked, is obliged to explain his or her conduct to a regulator. But that definition wrongly regards the regulator of a modern profession as the fount of all omniscience and the only critical arbiter of excellence. There was a time, not so long ago, when men and women were regarded as professionals without ever having to validate that description from time to time before a committee of their peers, still less to a committee of laymen. However, this definition does, perhaps, bring us closer to the idea of a person whose craft is performed against the framework of a code of ethics.

Yet a code of ethics cannot instil a sense of right and wrong, or the quality of moral courage and it cannot prevent a practitioner from favouring his interests over those of his client. Nor can a Code compel a lawyer to resist any outside pressure that might imperil his or her client. It is here, I suggest, that one gets closest to the elusive essence of professionalism.

Be he Barrister, Solicitor, Surgeon or Soldier, the truly dedicated professional will willingly put himself or herself on the line for another person. Those who sit solemnly in judgment pondering minor infractions of sets of rules might reflect on this definition of professionalism. The analogy with the military is obvious. Barristers who stand up to Judges will understand this idea acutely well. It is really only once a Barrister has faced a hostile tribunal, when he or she is the sole spokesman for an unpopular or, perhaps, even a reprehensible client, when the saving of a life, or a career, or a reputation, rests on his or her shoulders, that the Barrister will know what it means to perform his or her craft with professionalism. And despite the strain, the fatigue, the bad pay and even the obloquy of the media, it is curious but true, that we want to step back into the line of fire again and again.

BARRISTERS AS MEN AND WOMEN OF LETTERS: MARC BEAUMONT ASSESSES THE NEW PUBLIC ACCESS RULES.

It is almost 3 years since I advocated reform to paragraph 401 of the Bar's Code of Conduct. This rule prevented Barristers from engaging in party and party correspondence.  The prohibition stifled work in Public Access cases. I began a campaign to change the rule by writing for Counsel magazine on this topic, through my Vice Chairmanship of the Access to the Bar Committee of the Bar Council and by organising a seminar through the Public Access Bar Association, which I founded and chair. The Public Access rules enabled Barristers to negotiate a settlement orally, but not to put the same thoughts into a letter written on the Chambers' letterhead. This distinction between written symbols and sound-waves was an absurdity.

The BSB set up a working group of which I was a member. I advocated a lifting of the Bar's ban on correspondence. I also advocated a removal of the prohibition on Public Access instruction in criminal, immigration and family cases. My colleagues agreed with these proposals.

The working group adopted all these ideas and reported back to the BSB. The BSB, to its real credit, approved these rule changes in July 2009.

On 1st April 2010, the new Legal Services Board approved the rule changes and from this date, Public Access Barristers can now write and send correspondence in the course of their work.

The enfranchisement of the Criminal, Family and Immigration Bar is a fascinating development. The Criminal Bar, after years of oppression so far as legal aid fee rates are concerned, has come out fighting.  It wants new business structures, a level playing-field with solicitors in procuring government work and is embracing Public Access work as part of these changes. 50 members of one top criminal set have just joined the Public Access Bar Association.

The Family Bar shows little interest in direct access work at present, but this blinkered view will surely change in ancillary relief work.  The Immigration Bar is an unknown quantity, but one can expect gradual change here too.

The policy-making arm of the BSB is a liberalising influence and is open to sensible argument. This attitude is to be welcomed. The Legal Services Board has responded quickly and efficiently to the BSB's application for the approval of rule changes and deserves the Bar's warm appreciation.

MARC BEAUMONT LOOKS AT LIFE FOR THE BAR UNDER THE TORIES

On 24th February 2010, at Portcullis House, Westminster, the Public Access Bar Association, which I chair, was treated to a wide-ranging glimpse of life under a future Conservative Government. The shadow Justice Secretary, Dominic Grieve QC, MP, gave us a detailed projection of life for the Bar under a Tory administration.

The Tories would adopt the Jackson proposals on costs reform. They will look at the question whether the Legal Services Commission has any future at all. They will consider funding legal aid from the interest generated by a national client account into which all client account monies would be payable by law. They may well ensure that the Legal Services Board does not act too coercively with regard, for example, to powers to search lawyers' offices. Mr Grieve acknowledged the issues raised in my article in The Barrister magazine, see  http://www.barristermagazine.com/articles/issue33/beaumont.htm

What came through repeatedly in Mr Grieve's address, is that a Tory Government would listen to the Bar, would not dictate to it and would keep an open mind on all key issues.

There is every reason to hope that the sensation of being besieged by direct and indirect Labour attacks on the Bar, will yield to a new era of harmony and goodwill between the Bar and Government.  After years of being undermined and underfunded by the Labour government, the Bar should quietly hope for a Tory win in the forthcoming General Election.

MARC BEAUMONT ON NEW BUSINESS STRUCTURES AND THE LEGAL SERVICES ACT 2007

MARC BEAUMONT EXHORTS THE BSB TO SUPPORT THE MANAGERS

The Bar is braced for real change. The BSB proudly announces its revolutionary adoption of a scheme of new business practices.  It is now designing new rules. Conception to creation is one thing.  Implementation however, can kill the idea that spawned it. Let me explain why.

In 1990, I created a new business structure. It was revolutionary at the time.  A London Barristers' Chambers outside Central London at Harrow on the Hill.  But this organisation was unmanageable. This was in part because the Bar Council would not let me manage it. The Barristers we recruited had to be self-employed.  Yet they expected all the benefits of a corporate organisation - work, publicity, administration, premises, profile and an income. I provided all this. But the necessary internal mechanisms of control were absent. Why ? Because the Bar Council would not let me manage the organisation properly. I was not permitted to put in place anything that impinged on the freedom of members to take everything on offer and then after a year or so, to decamp with all the work we had provided.

If the BSB truly desires to herald a new era of Bar entrepreneurship, it must not stifle creativity with oppressive rules or rules that require the group to be subjugated by the individual.  The power balance in Chambers must shift to the managers. The illusory idea of Barristers being able to run free (ie: to run riot) within the organisation, must be examined and then circumscribed. True entrepreneurship requires the investment by courageous people of time, energy and money. These people drive groups forward.  And it is these people who deserve the most protection. The new rules must ensure that if new business structures are to be encouraged, those taking risk are  sufficiently protected. The era of the rapacious barrister or groups of barristers hatching plots in dark corners of an office conceived and created by someone else, must end.

One key change would be the chance for Barristers to employ other Barristers. A contract of employment would contain, expressly or impliedly, a strict duty ot fidelity to the employer. Conspire to destroy Chambers, or to usurp those who gave you your chance at the Bar and you will be out. The BSB should stand firm behind the managers if it is truly to herald a new era of business development at the Bar. The idea that Barristers who arrive in Chambers with nothing but a Law Degree should enjoy the freedom and status of well established entities, has had its day.

Another critical aspect is the idea, common in business, that a business has a legitimate interest in protecting its clientele and confidential client information. I tried to introduce non-solicitation agreements in my Chambers in the early 1990s. The Bar Council would not allow this. How will the BSB encourage people to take risk if they cannot protect their client base in the way that any other business can ?

It will be interesting to see how the new rules are developed.  However, I doubt that those who drive new business forward will be protected sufficiently to encourage substantial change. Certainly, after 13 years at the helm of a Chambers, I regard the traditional business model of a Barristers' Chambers as so fundamentally flawed, that I would have no interest in starting an ABS or LDP without better contractual and regulatory protection for my investment.

Accreditation of the Bar - a passing thought.

Marc Beaumont imagines a Bar strangling itself in red tape. But is he day-dreaming ?

Imagine a Bar where you had to do 12 hours CPD every year.  That is not difficult for it is what we have now.  Now imagne a Bar where you had to pay £ 1,200 to the Bar Council by way of a subscription.  Again, not difficult. This day has now come.  But what about a Bar in which you had to get annual accreditation ? You might have to fill out a form for every practice area in which you practise.  You might need to pay a fee for each such area.  And you might need 3 references from Judges, or Silks or other top brass before you could practise. Every year you would have to do this.  Imagine being skilled and experienced in 3 areas, or 6 or 10. Such a vision of the future would be a Bar without the general common law barrister. And do not think that this change would only affect publicly funded Barristers. There are some who want it for all of us.

The BSB argues that we need to improve our standards.  We need to be monitored more rigorously. Before it spends the Bar Council's money and the Bar's resources on this debate, perhaps we could please see some statistics, some empirical evidence that what is likely to be an unholy waste of money and resources is justified.

MAKING THE BSB's PROCEDURE MORE TOLERABLE

Marc Beaumont calls for greater fairness for Barristers

In a new article, I consider how to redress the imbalance in favour of clients when Barristers face disciplinary complaints.  I propose that complainants should write pre-complaint protocol letters, and pay issue fees. I call for robust and independent screening of Complaints, bulwarks against outside influence and better transparency in the form of disclosure of the Sponsor reports produced for the Complaints Committee of the BSB. I question the practice of the Complaints Committee taking no further action and then telling the Judicial Appointments Commission or Queen's Counsel Appointments that "a complaint has been made which has not been dismissed."  I call for the creation of a Barristers' Defence Committee of the Bar Council or an independent Barristers Defence Association along the lines of the League Managers Association.  I advocate a  psychological impact assessment of the effect of complaints on Barristers over say, 2 years.

Please see    http://www.barristermagazine.com/articles/issue33/beaumont.htm

Public Access Complaints

Marc Beaumont calls for the Public Access Bar to defend itself more effectively against Complaints.

According to the Complaints Commissioner at the Bar Conference last November, Public Access Complaints are on the increase. Since the inception of the Public Access scheme in 2004, such Complaints have been fairly few, but they are expected to rise in 2010. Certainly, there is a developing theme of client expectations being unrealistically high. For instance, the health warning that we cannot and do not manage litigation is sometimes forgotten. It is thus important to emphasise that the management of a case is the client's alone.  This can be frustrating - one gets one's teeth into a new case only for its management to be snatched away.  But it is important that we remind our clients that management day to day is not our job, but theirs.

When a Complaint arrives in a Public Access case, it is important that the complained-against Barrister instructs a Barrister with Public Access experience. The pressures are different. I am not sure that the BSB's Barristers fully understand PA work and its unique features. How many of the BSB's Complaints Committee do Public Access work ?  I would like to hear from PA Barristers who defend other professionals, so that we can compile a list of defence Counsel for the PABA website - see www.paba.org.uk   This would follow my creation of BCAS (the Barristers' Complaints Advisory Service) and my successful campaign for insurance-backed defence, now thankfully taken up by BMIF.

The need for experienced defenders of other Barristers has never been greater.  The BSB is under pressure from above to be a demonstrably robust regulator.  The Public Access Bar is a soft target for Complaints. I am myself defending a number of Barristers at present. In an article shortly to be published, I discuss how there is little equality of arms as between powerful regulators and sole practitioners - for that is what ALL Barristers are, irrespective of the cachet of any particular professional address. In advocating a psychological impact assessment of the Bar's reaction to the Complaints process over, say, 2 years, I will say:

The BSB does not regulate bureaucracies of equivalent financial and administrative power (because in a profession made up of sole practitioners, there aren’t any), but individual men and women. When the BSB trains its attention upon an individual barrister, the power imbalance is truly massive.

REFORMS TO THE BAR PUBLIC ACCESS SCHEME in 2010 - MARC BEAUMONT

_{Marc Beaumont writes:}

In July 2004, the Bar of England and Wales took a brave step. It opened its doors to direct access clients. It had previously rejected Marc Beaumont's proposal for direct advisory access, but pressure from the OFT and Marc Beaumont's own persistence and determination as the primary advocate for direct access work, paid off. The scheme is known as the Bar Public Access scheme.

In the Spring of 2010, the newly created Legal Services Board will consider the Bar's intention to expand the Public Access scheme to criminal, family and immigration work. It seems likely that this proposed expansion will be accepted by the LSB.

The LSB will also consider Marc Beaumont's proposal, made several years ago now, to widen the work functions that PA Barristers may perform: the ability of a PA Barrister fully to conduct correspondence will become enshrined in the English Bar's rules for the first time.