A little professional restraint

There have been a number of times over recent years where I’ve been asked whether or not I (or colleagues of mine) could give some mini-advice via online forums or groups, responding to enquiries by providing short initial responses. I had such a request recently from one website. I declined, partly because of workload, but also partly because of regulatory issues.

There are many who would (entirely legitimately) see this sort of thing as high risk, and who would not see any good business case for giving one’s time up on this sort of thing. This is particularly so in light of a recent judgment from the Court of Appeal on the potential for a claim in negligence against a professional offering advice, see Burgess & Anor v Lejonvarn [2016] EWHC 40 (TCC) (15 January 2016) where Alexander Nissen QC (sitting as a Deputy High Court Judge) held :

In conclusion, it is established that in law a duty of care extends to the protection against economic loss in respect of both advice and any service in which a special skill is exercised by a professional. The duty can extend to negligent omissions as well as the performance of negligent acts. For present purposes, the relevant ingredients giving rise to the duty are an assumption of responsibility by the provider of the service coupled with reliance by the recipient of the service, all in circumstances which make it appropriate for a remedy to apply in law. The passages above make specific reference to the fact that a duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However, as identified by Lord Goff, in the absence of a contract it is important to exercise greater care in distinguishing between social and professional relationships.

There might be a business case for doing this sort of pro bono work (inevitably it would be pro bono) – it may lead to instructions further down the line – in theory at least – or may generate more nebulous reputational benefits. On the other hand quite possibly there is no such business case. But my post isn’t really about whether or not there really is a good business case for doing this sort of thing, or even about the moral case for doing it either. If I were bothered about that I’d try it and see if the business case was made out in reality.

No, what is irritating me is the fact that I couldn’t test this out if I wanted to. That I couldn’t even do this for altruistic reasons should I feel called to help out. Because our code of conduct prohibits it.

There are two kinds of legal services. There are the kind which are “reserved legal activities” – the conduct of litigation and the exercise of rights of audience – and those which are not reserved. Reserved legal activities are basically the things that only qualified lawyers can do. To carry provide litigation or advocacy if not authorised to do so is a criminal offence. That’s all well and good but there is a whole lot of stuff which can fall within “legal services” that is not “reserved”, in particular the provision of advice. Any old muppet, legally trained or not, experienced or not, insured or not, can provide legal advice. My 7 year old son can provide legal advice (I wouldn’t recommend him).

So any lawyer can provide snippets of legal advice through online forums or community groups, perhaps to help out an organisation that gets regular enquiries from desperate parents? Right? Wrong.

Rule s24  of the BSB Handbook says this :

You may only supply legal services if you are appointed or instructed by the  court  or instructed:

1 by a  professional client (who may be an  employee of the  client ); or
2 by a  licensed access client , in which case you must comply with the  licensed access rules ; or
3 by or on behalf of any other  client , provided that:
a the matter is  public access instructions and:
i you are entitled to provide public access work and the  instructions are relevant to such entitlement; and
ii you have notified the  Bar Standards Board that you are willing to accept instructions from lay clients; and
iii you comply with the public access rules; or
b the matter relates to the  conduct of litigation and
i you have a litigation extension to your  practising certificate ; and
ii you have notified the  Bar Standards Board that you are willing to accept instructions from lay clients.

You can read the Handbook here, if you like that kind of torture. Good luck navigating it – it’s utterly impenetrable, I think it is some kind of parody of how lawyers like their documents to be. Bring back the code I say.

So. Boiled down this means that I can only supply legal services if instructed by a solicitor, if I act through public access or through licensed access. I can’t just advise any time any place (I am not like Martini). This is why, when we set up our pro bono clinic in Bristol recently we had some difficulty getting cracking with a scheme that would work for barristers – ultimately we were able to operate only under the licensed access umbrella of the Bar Pro Bono Unit. We could not just rock up at court and advise people.

[EDIT : To go back to the online forum scenario – this effectively makes it impossible to help. It would be impracticable to do via public access because of all the hoo hah with assessing suitability and the need to send client care letters etc, even if one had the address details, and there is no other route available.]

This is not a problem that burdens solicitors. And what’s more it is not a problem that burdens McKenzie friends. And this what irks me. If I had the time and the inclination, I could be out there chipping in when able, offering (I hope) reasonably coherent snippets of advice (appropriately limited so as not to make my insurers’ hair stand on end no doubt), to the benefit of those individuals who might not otherwise have any support. So instead I suspect many community groups and forums are advised by McKenzie friends – perhaps some of whom are highly skilled and experienced – and no doubt some of whom are really not.

Why is our legal services market organised this way? To restrict the skilled, experienced, insured and regulated from helping out but leaving the unregulated and highly variable cottage industry McKenzies to offer dubious advice and identify vulnerable potential clients who they can charge more to provide “support” and “advice” than they would pay to a qualified lawyer who would throw in drafting and advocacy for the price? Not all McKenzies charge money, and not all charge more than a lawyer would – but I’ve certainly seen a few who do.

It feels to me as if in choosing to regulate one part of the market whilst leaving the other part to do as it pleases we leave litigants very vulnerable, and at risk of being diverted away from benefiting from legal services from qualified legal professionals. One of the first pieces of advice most McKenzies will give in my experience is that a litigant doesn’t need a lawyer, perhaps even that a lawyer will be an expensive waste of money (or worse). My recent experience on radio 4 was a reminder of how negative the views of some McKenzie friends can be about lawyers.

Frankly, I have enough on my plate without worrying about helping out on some advice forum. But others may take a different view. And I do wonder whose interests the BSB are protecting in preventing us from doing so if we wish. Certainly not the consumers of legal services or the bar either for that matter. If, as I suspect, this is the old rubbish about protecting the specialness of the bar as a referral service it’s rot. That ship has sailed. I’m no competition lawyer, but isn’t this a restrictive practice? Why do we have our hands tied behind our backs when trying to compete against McKenzie friends?

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3 thoughts on “A little professional restraint

  1. Good post, Lucy.

    When I started doing a weekly Q&A show on a radio station, I agreed terms with the BSB as to how to get round this problem. They were satisfied there would be no breach provided:-

    (a) I took out special insurance; and,
    (b) every caller into the radio show who went on air received a public access instruction letter (with all the impenetrable nonsense that contains) by email within a ‘reasonable period’ after speaking to me on air, stating I was giving advice in my capacity as a barrister under the public access scheme blah blah blah, and giving reams of details on how to complain about me. The radio station producers send out about 10 of these each week. It is bureaucratic nonsense – and bureaucratic nonsense I comply with because the consequences of not doing so could be severe.

    • Hi Daniel,
      That IS ridiculous. I’ve also been asked to do radio stuff and have scratched my head about it a lot and given up. It’s a farce isn’t it?
      By the way your comment reminded me to clarify my post to make clear I don’t think the public access / client care thing would work with an online forum. I was lazily trying to finish my post before the laptop juice ran out last night as I couldn’t be a**d to get off my behind and get the charger. I hit post at 3% charge!

  2. You are clearly in the wrong profession………..

    Foster Care Associates

    Owned by: Jim Cockburn and Janet Rees through Ideapark Ltd

    Income from foster care in 2014**: £127.2m

    Payouts to owner in 2014: £7m

    Highest paid director salary and other benefits: £406,000

    National Fostering Agency (includes the Foster Care Agency)

    Owned by: Stirling Square Capital Partners (previously Graphite Capital until April 2015)

    Income from foster care in 2014*: £94.5m

    Payouts to owners in 2014: £14.4m to Graphite Capital

    Highest paid director’s salary and other benefits: £318,112

    .

    Acorn Care and Education (includes Fostering Solutions, Pathway Care Fostering and Heath Farm Fostering)

    Owned by: Ontario Teachers’ Pension Plan

    Income from foster care in 2014*: £73.1m

    Payouts to owners: £13m accrued in 2014

    Highest paid director’s salary and other benefits: £266,420

    back.

    Partnerships in Children’s Services (includes Orange Grove, ISP, Fosterplus and Clifford House)

    Owned by: Sovereign Capital

    Income from foster care in 2014*: £29.8m

    Payouts to owners in 2014: £1.9m

    Highest paid director’s salary and other benefits: not shown in accounts

    we have not heard back.

    Swiis Foster Care

    Owned by: Dev Dadral and family

    Income from foster care in 2014: £29.4m

    Payouts to owners in 2014: £1.5m (from the wider Swiis group, see below)

    Highest paid director’s salary and other benefits: £169,000

    Capstone Foster Care

    Owned by: Different individuals and companies (see below)

    Income from foster care in 2015: £21.1m

    Payouts to owners in 2015: £406,000

    Highest paid director’s salary and other benefits: £185,000

    Compass Fostering (includes The Fostering Partnership, Eden Foster Care and Seafields Fostering)

    Owned by: August Equity

    Income from foster care in 2015: £25.9m

    Payouts to owners in 2015: £3.1m accrued

    Highest paid director’s salary and other benefits: £131,000

    caretech

    Owners: shares are publicly-listed – Farouq and Haroon Sheikh biggest shareholders with 20%

    Income from foster care in 2014: £12m

    Payouts to owners in 2014: £240,000 in 2014

    Highest paid director’s salary and other benefits

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