Friday, 7 May 2010

Barristers Terms of Engagement - sharing or bearing the Risk

I have to thank barrister, Jane Lambert of NIPC for drawing my attention to The Bar Council Consultation on their terms of engagement.

The paper is worth a read just for the explanation of the delights of the "cab rank rule" and the fact that there is no obligation to pay barristers. What gentlemen to have practised so long on such unsound terms. I have every sympathy with the need for reform.

The downside of making the solicitor (or presumably other regulated lawyer such as a a patent or trade  mark agent since CIPA, ITMA and IPReg are listed amongst the consultees) responsible for payment under the New Contractual Terms  is that the solicitor then bears all the risk of the non-paying client and today that is SO LARGE we will always needs barristers fees as a retainer in advance of giving instructions.

The Terms also allow for open hourly rate contracts. 

It seems to me that the Bar Council is asking for a lot in exchange for the cab rank rule. In Intellectual Property Matters that does not really hold up. Clients have to instruct Council they can afford and who are available. For many IP matters it makes a lot more sense for the barrister and solicitor to work in partnership sharing and managing the risk. Gone are the days when a barrister did not contaminate his hands with issues of money.

The risks are greater if the solicitor is not a large organisation and I believe solo solicitors are just as worthy of protection as younger and more vulnerable barristers.

What to do - make your opinions known to your representative body and ensure they respond to the Consultation, comment on this blog. If there is enough support and consensus we can submit a SOLO response.

This has not got a lot to do with apples but its a nice one and somehow it ought to be shared and not poisoned.

1 comment:

  1. These draft terms (or a version of them) have been floating around for years. Some years ago (3 or 4?)the IP Working Party of the Law Society (of which I am a member) was asked to comment on the IP terms (which are now better than they were at the time). But the IP clause was a small issue compared with some of the more fundamental points of difference. I wasn't convinced that there needed to be a set of terms. I had the impression that the document was in the nature of an agenda for long-term, strategic discussion between the Bar and the Law Society, on issues of interest such as solicitors failing to pay their barristers.

    I don't know what has changed now, that has caused the Bar Council to issue this consultation. Perhaps the document has risen to the top of someone's in-tray. It is difficult to know where this is going. As the Law Society has commented, there are plenty of other, unresolved issues in the relationship betweens Bs and Ss, eg when is it acceptable to return a brief.