Licensed Access – Licensed Success: Corporates and Businesses instructing the Bar

 

Licensed Access and Direct Access to the Bar is on the rise. This brief article will highlight the advantages, elements to be aware of and also the innovative options available to corporates and businesses with legal needs and issues.

The Public Access Scheme was first launched in 2004 – it allowed barristers to be instructed by members of the public. This is now known as Direct or Public Access and is a route by which businesses can instruct a barrister directly. 15 years earlier, in 1989, Direct Professional Access (DPA) was introduced - organisations or individuals that had an identifiable area of expertise or experience could instruct the Bar. It allowed other professions, such as accountants and architects, to apply for a licence to instruct barristers. This is now known as Licensed Access.

The last 10 years or so has seen the practice of General Counsel, corporates and businesses instructing the Bar directly increase to mainstream levels. The notion that a corporate or business can instruct the Bar directly has increased since the economic troubles began in 2008. Across the board there is a strong appetite for value, both in financial, and legal supplier terms. As a result, the relationship between UK businesses and the Bar has seen a positive change. In addition, there have been some interesting new legal business models emerging.

The Bar has also to some extent modernised by becoming a more commercially aware arena. This is of course all assisted by the UK Bar and justice system being seen globally as a bastion of equality and fairness.

The benefits of a business or organisation (be it an SME or a large corporate) instructing the Bar are numerous. Among these are:

  • Access directly to someone with expertise in a particular area;
  • Continuity of advice;
  • Only one legal adviser (coupled with low barrister overheads, equate to a cost saving);
  • The matter is run from the outset by Counsel who runs it in the best way according to the risk appetite of the instructing party (an obvious benefit should court be involved); and
  • Counsel can visualise the view a judge may take should the matter end up being presented in court.

However, this scheme does come with some limitations. Unless Counsel have extended their practice certificate to conduct litigation, they will not, for example, be permitted to:

  • Issue any claim or process an application notice;
  • Sign off on a list of disclosure;
  • Instruct expert witnesses on behalf of a lay client;
  • Accept liability for the payment of expert witnesses;
  • Take any ‘formal steps’ in litigation that are currently required to be taken either by the client personally, or by the solicitor; and
  • Barristers are prohibited from handling client funds in certain circumstances (although BARCO can be used which is a segregated bank account that can receive client funds).

It has also been seen that Licensed Access may not suit:

  • Document-heavy cases;
  • Cases dealing with numerous witness statements;
  • Cases where a document review is likely; and
  • Advice that requires significant blocks of time.

The reasons for this are due to the finite resource that a barrister may have at their immediate disposal. For example the barrister cannot refer the matter to another barrister in chambers; as may happen between partners in a law firm. The clerks in chambers also have little extra capacity to deal with client queries. For these more demanding matters a barrister and client will require law firm assistance. This invariably means having to go through a route of traditional instruction in which a solicitor is engaged. If an hourly rate is used it can also drive a behaviour geared to time rather than concentrating on the output itself. This can increase cost – which is quite literally the bottom line for many businesses.

So, what can be done to ensure that if you are a client you maintain that continuity of barrister and cost effectiveness whilst having the wider legal support required? Happily, there are new legal entities now in existence that can provide that.

Business such as Riverview Law are able to offer a hybrid solution which mixes the benefits of Licensed Access with the support of an SRA regulated alternative business structure. This is achieved using a barrister-led model, underpinned by a staged fixed fee approach. The model employed by Riverview Law is a collaborative approach which puts the customer at the centre. The barrister leads the process with appropriate support from Riverview Law’s solicitors and a client manager. This streamlined, flexible approach means that quality, cost and value are maintained; be it a business with a litigation issue or a corporate General Counsel with a particular issue at hand.

With the options available to organisations, businesses and the wider public in general, it is little wonder that Licensed and Public Access is being seen as a route to gaining informed, cost effective advice without the need for a law firm structure.

Will Taborn

Riverview Law

Operations Manager – Litigation and Legal Projects

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