Public Access Scheme
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Public Access allows the public to contract with (instruct) a barrister direct. A member of the public does not need to instruct a solicitor first, he can now go straight to a barrister. Subject to the case being suitable for Public Access, the barrister may accept the instructions to provide legal advice or to represent the client in court. The client is then advised and guided through the legal procedure by the barrister.
Public Access Scheme has been introduced as part of the drive to open up the legal system to the public. It is part of a wider scheme to make it easier and cheaper for the general public to access legal advice.
What are the benefits of Public Access?
The potential benefits of Public Access are very significant:
(1) It is designed so that you can get legal advice from a barrister without ever having to employ a solicitor. This means that you only have to pay for one legal advisor rather than two, potentially producing significant costs savings;
(2) You get direct access to specialist legal advisors and advocates;
(3) Barristers regularly do work for a flat fee, providing you with certainty about how much work will cost;
(4) Under the watchful guidance of the barrister, you do some of the work a solicitor would do, saving you the cost of paying for what you can do yourself;
(5) If for any reason you do need a solicitor, then your barrister will tell you. Which means you only instruct a solicitor when you need to. Further, the barrister can recommend you a solicitor. It should be a recommendation you can trust because it comes from an expert in that area of law, with years of experience of different solicitors in the field. And note, the barrister cannot receive remuneration for his recommendation.
I have not heard of Public Access before, why is that?
Traditionally, barristers have not been able to accept instructions to do legal work directly from members of the public. In July 2004, the (then) barristers’ governing body, the Bar Council, changed the rules so that barristers are now allowed to accept such work.
Because barristers have to do a special course before they can accept Public Access work, the scheme is taking time to grow. However, news is circulating and the number of barristers qualified to do Public Access is increasing significantly.
Do all barristers do Public Access work?
No, not all barristers do Public Access work. A barrister needs to have completed a special course (or have been given an exemption from this requirement by the Bar Standards Board) before he or she is entitled to undertake Public Access work.
Are all areas of law covered by Public Access?
Yes, you can instruct a barrister to help you with any area of law, including family, crime and immigration problems.
Barristers can provide advice on both legal disputes (contentious work) and advise as to how to best structure transactions for the future (non-contentious work).
To introduce Public Access gradually, up until recently there were restrictions on barristers undertaking family, crime and immigration work under the scheme. As the introduction has progressed, all these restrictions have been removed.
Are there any restrictions on what a barrister can do?
Yes. A barrister cannot “conduct litigation” nor can he handle money belonging to a client.
The Bar Council take the view that the phrase “conducting litigation” includes (and so are things a barrister is not allowed to do):
(1) the issuing of proceedings and performing any ancillary functions in relation to the proceedings, such as issuing applications or acknowledging the receipt of proceeding documents;
(2) providing the barrister’s address as the address for service of documents;
(3) signing a statement of truth on a legal document on your behalf;
(4) issuing notices of appeal;
(5) instructing an expert witness and undertaking personal liability for the expert’s fees.
In addition, under this rule a barrister is not allowed to:
(1) find evidence for your case
(2) undertake the management or administration of your affairs.
I have a criminal case, are there any restrictions?
No.
There used to be restrictions but these were removed. Please note public funding (legal aid) is not available with Public Access.
I have a family case, what are the restrictions?
No.
There used to be restrictions but these were removed. Please note that public funding (legal aid) is not available with Public Access.
Can a barrister provide legal advice and representation in court under Public Access?
Yes.
What if my barrister thinks I need a solicitor?
Before a barrister accepts Public Access work, he or she is required to investigate whether it would be in the client’s best interests or the interests of justice for the client to instruct a solicitor or other professional client. If the barrister thinks that a solicitor is required he is entitled to withdraw from the case or decline to accept the instructions. You will then need to instruct a solicitor, but will be able to go back to the barrister through that solicitor.
The barrister is under a continuing duty to review whether the case remains suitable for Public Access. However a barrister is likely to review the matter only if the complexity of the issues or amount of evidence changes significantly, or requirements on you change or there is a change in your circumstances.
Why might I need a solicitor?
You may need to instruct a solicitor if your role under the Public Access scheme becomes too burdensome or difficult for you. Some types of legal work can be moderately straightforward and require only small amounts of evidence. With some guidance from your barrister, the issue can be dealt with without too much being required of you. On the other hand, litigation can sometimes become complicated and require significant work by you in order to get the documents and evidence in order.
It will be a question of degree as to whether it is in your interests, or in the interests of justice that you instruct a solicitor. If either you or your barrister have any concerns about how things are progressing, you can discuss together how you want to proceed.
Can the barrister force me to instruct a solicitor?
No, a barrister cannot force you to instruct a solicitor. However, if the barrister believes that it would be in your interests, or in the interests of justice for you to instruct a solicitor or other professional, then unless you do instruct a solicitor or other professional, then the barrister will have to withdraw from the case. If you later instruct a solicitor, you can if you wish try to re-instruct the same barrister.
If I do have to instruct a solicitor as well, can I keep instructing the barrister?
Yes, but this will be through the solicitor.
Can the barrister write letters on my behalf?
Yes, the barrister can draft letters for you and these can be on Chambers' headed paper. There are some restrictions on the types of letters which your barrister can send out for you. Your barrister can explain this when you instruct him.
Can the barrister issue a claim or application on my behalf?
Barristers are not allowed to issue claims or applications at Court. This restriction applies to the barrister’s clerk as well. The issuing of claims or applications is deemed to be part the conduct of litigation and so not within a barrister’s role. You will be expected to issue claims and applications at court for yourself it they are needed.
This is not to say you will be without guidance; the barrister can draft the document you need and then explain to you how you go about having the claim or application issued in court. All you would need to do is actually have the document issued.
Can the barrister handle money on my behalf?
Barristers are not allowed to receive or handle client money, apart from their fee. This means that barristers are not able to hold any money on behalf of any party.
Where can I get more information about Public Access work?
There is a very significant amount of information about Public Access on this website. All the important aspects of Public Access are dealt with, either as part of the general information pages, or in the Frequently Asked Questions part. But if you still want to know more, you can visit the Bar Council’s website or the Bar Standards Board website where some further information is provided.
If you have a question we haven’t answered, then fill in the feedback form on this website and we will try an update the website with the answer.
Do I have to instruct two barristers instead of a solicitor and barrister or can I just have one?
One of the key advantages of Public Access is that it allows you to avoid having to pay for two legal advisors. You need only instruct one barrister with Public Access work.
Do I instruct the barrister or do I instruct the chambers?
All barristers are self employed. You instruct the barrister individually; you cannot instruct a set of chambers. The contract is always just between the barrister and you. While you may deal with a barrister’s clerk in relation to fees, or when making enquires about certain barristers, because each barrister is self employed it will only be that barrister who is instructed to provide the legal advice or representation.
Will I receive a client care letter?
When a Public Access barrister accepts instructions to do any work for a fee, he or she will provide to you with a client care letter setting out amongst other things:
(1) the work he or she has agreed to perform;
(2) the basis upon which he will do that work (e.g. timetabling and availability);
(3) the fee for the work or a method of calculating the fee;
(4) other important points about retaining documents and your rights should you wish to complain.
Will a barrister always be available?
No. It is important to remember that barristers will not always be available to speak with you about your case. Barristers have busy schedules and may often be unavailable if they are in court on another case. Every barrister will be working on many cases during the period of your instructions and he or she will have court and conference commitments which cannot be avoided or changed.
When a barrister is in court, or is about to go into court, he or she will be expected to commit all of their attention to that particular case. Judges will not accept barristers interrupting court hearing to deal with other matters.
Consider how urgent the matter is. If there is a deadline you should ring up the barrister’s clerk and tell them of the deadline and why you wish to speak to the barrister. If your matter is not urgent, but you need advice because, for example, you are not sure how to respond to a recent letter from your opponent, then generally the best approach is to send a copy of the letter (by post and, if available, by fax) to the barrister asking him to consider it and to get in contact when at his earliest convenience.
Clerks are very good at passing on the message that you want to speak to the barrister. You can rely on the clerk to notify the barrister that you rang and that you wish to speak to him/her by a certain time. The barrister will contact you when he or she next becomes available. Bear in mind that clerks may be vague about exactly when a barrister will be available because the length of cases and conferences are difficult predict.
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