The Bar Standards Board is consulting on relaxation of its Public Access rules. In particular, it proposes to widen direct access to clients who are likely to qualify for legal aid (so legally aidable clients would be able to pay and instruct barristers direct) and to allow barristers of less than three years practising experience to do public access work if they have done the relevant training. As such, the review is a deregulatory step and one which increases the chances of fusion of the ‘high street client’ bar with the solicitors’ profession.
The consumer protection elements in the proposals are weak. The client care rules are not signficantly worse than those for solicitors’ clients although there are supervision requirements on solicitors’ firms for which the Bar has no formal analogue. The proposals will of course also enable the Bar to compete on a more even basis: solicitors will say on a basis more favourable to the Bar (the training barriers to direct access are lower for the Bar than they are for would be solicitors but solicitors have better direct access to client markets).
My main interest is in the way the BSB has approached this task and, in particular, the evidence they rely on to support the proposals. The consultation appears to have been prompted by a mini-consultation (mainly involving barristers and chambers) which was itself prompted by ‘a number of’ letters from barristers who’s clients had complained about the inequity of being unable to instruct barristers direct. “I have a friend who has a teeny weeny alcohol problem…” has morphed into barristers claiming clients upbraid them for lack of competitiveness. I wonder how many clients in conferences with their barristers say, presumably whilst the solicitor(‘s trainee) is in the loo: “rather than be on this awful legal aid, I’d much rather be able to instruct you direct, particularly as you appear to be less than three years into the job.”
I don’t really blame the Bar for looking at this though: this is about competition and they have a perfect right to consider the basis on which they compete. I have a more serious concern though about some of their justifications for supporting reform which smell more of advocacy than analysis.
We are told that 4,143 barristers having completed the public access training course. This is a sizeable number but we have no idea how many actually take direct access clients, in what field of work or in what volumes. Interestingly, the numbers taking the course quadrupled in 2010 to 800ish per year. Such rapid shifts suggest market change but canny regulators would know may also presage regulatory risk.
We are not told how many failed to pass the course. There is no real indication of the robustness of that training or how successfully it is at guaranteeing the competence of those who have sat it. For a judgment on that we are asked, implicitly, to rely on the fact that: “the number of barristers completing the Public Access Training Course has increased, [but] complaints about barristers carrying our Public Access Work have decreased.” The data they use suggests complaints made to the BSB peaked in 2009 at the heady level of thirteen, and then dropped to two in 2011. They indicate in passing that their numbers exclude complaints to the Legal Ombudsman (LeO), but they at no stage indicate a recognition of the importance of that exclusion. An important question is why?
A broader analysis of data on complaints to LeO is the more relevant figure. Perhaps the BSB does not know anything about the relationship between barrister and client in these complaints. They do appear to know something though (see Legalfutures which reports 226 complaints received against barristers by September 2011). The BSB analysed complaints passing from LeO to see how many were from litigants in person (or perhaps the Ombudsman did). The impression given is the BSB using data because it fitted with representations on legal aid reform (more properly the domain of the Bar Council). It would be interesting if they have access to broader data but have not analysed it for its regulatory function (to ascertain how much of a risk, direct access may pose) [n.b. see BSB’s comment on this below]. Indeed, in the circumstances, it would be unfortunate if the Bar’s regulatory arm had failed to conduct analysis which it could have done when advancing proposals which have, in terms of the competition elements of direct access, a rather representative flavour to them.
Not all of the 226 complaints to the Legal Ombudsman will be from direct access clients but with the highest number of complaints being in 2009 (13) it would only take a small proportion of the complaints made to LeO to be direct access complaints to render the BSBs claim about complaints numbers dropping to be misleading.
Although the numbers are small, the analysis of the complaints that the BSB do know are from Direct Access clients is also eye opening. Of the 22 charges of misconduct (made in respect of seven barristers) all but one was proved. Of the 10 Inadequate Professional Service charges: seven were proved and three dismissed. You have to pause a little to work this out but this means that 88% of complaints against direct access barristers were upheld. That is an astonishingly high rate, particularly when compared against the conventionally very low level of upholding of complaints against the Bar. The BSB appears to attach no weight to this data in any evaluation of risk.
For me, this poses the question do the Bar Standards Board have a sufficient grasp of the risk that they propose to deregulate? Have they attempted to get information from LeO to establish the nature of complaints against their members and the relationship to direct access work? Complaints data is a pretty bad indication of competence, but it is all they have and they appear to rely on a small and skewed data set when they knew, or ought to have known, there was probably better data available. Their approach to presenting the evidence is a surprising one and not one which suggests an approach which is fully balancing the public interest against the profession’s interest . I would be prepared to accept some of the arguments for more direct access, but I would like to see the BSB arguing on a more informed basis and from a more balanced position.