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Barristers free to conduct litigation as Bar watchdog ushers in new ‘risk-based’ conduct regime

While the post-Legal Services Act (LSA) shake-up moves far more slowly for barristers than their solicitor cousins, the Bar continues to modernise at its own pace with new conduct rules unveiled this month heralding significant reforms.

The Bar Standards Board last week unveiled its new code of conduct for barristers allowing self-employed advocates to conduct litigation for the first time and to form associations with non-barristers – two significant steps towards liberalising lawyer regulation.

The first move will allow barristers to apply for an extension to their practising certificate to conduct litigation, relieve clients approaching public access barristers of having to act as a self-representing litigant and conducting the administrative tasks themselves or go through a solicitor. The move increases the scope for barrister chambers to act more like specialist disputes businesses, levelling the playing field with solicitor firms.

The revised code, which comes into effect in January 2014, will form part of a new BSB handbook that will consolidate the Bar watchdog’s regulations into one publication. The move has been highlighted as part of a move towards ‘risk-based’ regulation that the BSB says will see it focus enforcement on the most serious rule breaches.

BSB chair Baroness Ruth Deech said: ‘Superfluous rules have been stripped away and others have been modernised. The handbook’s approach is less prescriptive, with more focus and guidance on what the outcome of a rule should be, rather than attempting to define how a barrister should act in every situation. As well as offering greater clarity, there are also new measures that will empower barristers to change their business models in line with consumer need.’

Deech added that this supervisory approach will ‘help us to ensure that enforcement action is reserved for the most serious cases of non-compliance which could have considerable consequences for the client and the public interest’.

The move comes as the BSB moves to further position itself in the post-LSA environment with plans to apply to the Legal Services Board to take on the power to regulate entities rather than individual barristers and to become a licensing authority for alternative business structures (ABS). The Bar regulator hopes to take on both roles in 2014.

Its solicitor counterpart, the Solicitors Regulation Authority (SRA), has enjoyed such powers in relation to ABSs since January 2012. The SRA has already granted more than 140 licences since the regime came into force.

While the BSB moves to expand its regulatory remit, the High Court is currently considering a challenge to its procedures. The BSB has also faced sustained controversy over the last 12 months amid claims of conflict of interest and poor governance. A successful roll-out of the new conduct code would be timely.