In a recently published guidance note aimed at solicitors who instruct barristers the Law Society says the new terms turn the relationship between solicitors and barristers into a standard contractual one which can form the basis for lawsuits.
A requirement to refuse work offered on credit by solicitors named on the Withdrawal of Credit List will also be replaced by the option to refuse such work when offered by solicitors named on a new List of Defaulting Solicitors.
In an additional change, the ‘cab rank rule’, a traditional obligation on barristers to accept any work offered to them in their usual areas of expertise, in their usual court and at their usual rates, will now only apply to work offered under these new terms, or others terms which they have declared to be their standard terms.
The Law Society claims:
“The new standard contractual terms have been adopted by the Bar unilaterally. The Law Society is concerned that, under the terms, the balance of obligations is weighted strongly in favour of barristers. It is our view that the relationship between solicitors and barristers is a commercial one, the terms of which ought to be agreed between themselves.”
The note identifies nine different areas of concern, with a particular focus on the terms surrounding fees, payment and liability, and includes a letter which solicitors can use to suggest “alternative and more equitable wording”.
Law Society president Lucy Scott-Moncrieff said:
“Of course there should be a contract to bring the commercial relationship between solicitors and barristers in line with standard practice rather than the previous outdated system. However, there must be a balance between the two interests and most importantly, that of the client. In our view, the Bar’s proposal favours of the barrister and gives the solicitor (and therefore the client) insufficient control or effective remedy in the event of inadequate performance by the barrister.”
“It is very disappointing that there could not have been agreement between the two professions on the content of the new standard contractual terms. In the absence of agreement, the Society has had no alternative but to issue guidance to solicitors, warning them of provisions which could be contrary to their interests in the relationship with a barrister and offering them alternative contract clauses. I hope that the profession will find this guidance helpful.”
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