A study of the solicitor referral arrangement is in the works
Bar watchdog for England & Wales Bar Standards Board will be reviewing the extent to which solicitors give their clients the option of choosing a barrister to represent them in court, in part to address previous criticism from the Legal Services Board.
The Bar Standards Board recently released its business plan for 2023 to 2024. Apart from a 13% year-on-year budget climb from £1.1 million to £9.3 million, the regulatory body announced that it intended to assess the practice of solicitor referrals, and whether it was always in the best interest of the client to be offered a choice of barrister, in 2024 to 2025.
The inclusion of this agenda came after barrister Rehana Popal of 10 King's Bench Walk in London was told by an instructing solicitor that the client preferred a white, male barrister to handle their case back in 2018. Popal had been the first female practising Afghan barrister in England and Wales, the Law Society Gazette reported.
[1/2] Just had a solicitor call to tell me that a case that I had previously been instructed on, which was adjourned administratively due to lack of judges was now re-listed for December. However, the client has said he doesn’t want an Asian female but a white male barrister.— Rehana Popal🕷 (@Rehana_Popal) November 7, 2018
“A solicitor should refuse their client’s instruction if it involves the solicitor in a breach of the law or the code of conduct,” then Law Society president Christina Blacklaws had said at the time. “Where a solicitor realises they have breached the code, they may have a duty to report themselves to the regulator.”
A Bar Standards Board spokesperson admitted that there were “a number of regulatory angles” for the bar in this regard – especially relating to equality of opportunity and diversity.
“The bar remains very largely a referral profession,” the spokesperson was quoted as saying in the Gazette. “Is it in the best interests of clients to be offered a choice of barrister? Sometimes yes and sometimes no. We will be looking at that.”
The Legal Services Board’s annual report on the Bar Standards Board published earlier this year was a scathing one. The LSB rated the latter “insufficient” on leadership and enforcement and pointed out prolonged delays in carrying out investigations.
“Although the quality of our decision-making remains high, our priority is to improve its timeliness,” the Bar Standards Board said in its plan. “We intend to ensure that the increase which we have made in investment in this area will enable us to meet key service standards….”
The Bar Standards Board said that its plans for 2023 to 2024 – including an overhaul of its approach to gathering and analysing intelligence and an end-to-end review of its enforcement policies and processes – would contribute to a “cultural transformation” of the organisation.
“We want the Bar Standards Board to look forward, not backwards, and to intervene, where necessary, proactively, not reactively,” the plan said.
A letter to the chair of the Legal Services Board published alongside the plan also assured the LSB that it was the Bar Standards Board’s intention to be “a champion of the public interest” as the bar evolved to meet new challenges in the profession.
“[Our] ambition is to see the Bar Standards Board itself increase in its self-confidence and credibility as a respected independent regulator,” chair Kathryn Stone wrote. “A culture of continuous improvement will be at the heart of this.”
Reforms outlined in the 2023-2024 business plan will be reflected in changes to the bar’s handbook and code of conduct, the Gazette reported.