Bar Practice Course

Direct Access Briefs – Avoiding the Pitfalls

Dominic Toomey SC

Jack Shand Chambers

Introduction The ability of barristers in NSW to accept briefs directly from clients is a

relatively recent phenomenon. Anecdotally, however, many barristers,

especially in their early years at the Bar, and particularly those whose practices

have a focus on criminal law, are now frequently accepting briefs on this basis.

This paper is concerned with briefs from private individuals. Briefs from

corporations, “in-house” lawyers and government instrumentalities are beyond

its scope.

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Barristers are heavily regulated. The promotion of just processes and outcomes,

and the protection of consumers of barristers’ services, demand that this be so.

Particular attention has been given to the regulation of the provision of services

in the nature of barristers’ work where a brief is accepted on a direct access

basis. Protection of clients is the principal focus.

This paper sets out the principal provisions of the Legal Profession Uniform

Conduct (Barristers) Rules 2015 (“Bar Rules”) which have both a direct and an

indirect bearing on “direct access” briefs. A number of those rules, while not

dealing specifically with direct access situations might nevertheless impact

upon the question of the suitability of a matter for direct briefing. The paper also

deals with the question of fees, particularly the very strict regulation of the

acceptance of fees in advance of the performance of work – an area that, in

recent years, has been the cause of a number of complaints against barristers.1 It

then provides some general pointers as to how one might avoid positions of

conflict, in both senses of the word, with direct access clients. There are

numerous measures which can be taken to avoid problems altogether, or to nip

them in the bud when they do arise. They will, if taken, make your life very

much easier when you encounter the problems inherent in direct access work.

The Bar Rules

1 See, for example, Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407

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The Bar Rules are not a code, in that they exist alongside of, and do not displace,

the common law concerning barristers’ ethical obligations. Having said that,

adherence to the Bar Rules and other statutory obligations will generally see

you clear of trouble. Beyond them, common sense and “client first” are infallible

guides. If in doubt, seek guidance from a senior colleague.

The Bar Rules should be read, and reread, particularly in your early years as a

barrister. They should sit in every barrister’s top draw.

The following rules have particular relevance to direct access work.

The work of a barrister 11 Barristers’ work consists of: (a) appearing as an advocate, (b) preparing to appear as an advocate, (c) negotiating for a client with an opponent to compromise a case, (d) representing a client in a mediation or arbitration or other method of alternative dispute resolution, (e) giving legal advice, (f) preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs, (g) carrying out work properly incidental to the kinds of work referred to in (a)-(f), and (h) such other work as is from time to time commonly carried out by barristers. 12 A barrister must be a sole practitioner, and must not: (a) practise in partnership with any person, (b) practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment, (c) practise as the employee of any person, (d) be a director of an incorporated legal practice, or (e) practise by or through an unincorporated legal practice. 13 A barrister must not, subject to rules 14 and 15: (a) act as a person’s general agent or attorney in that person’s business or dealings

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with others, (b) conduct correspondence in the barrister’s name on behalf of any person otherwise

than with the opponent, (c) place herself or himself at risk of becoming a witness, by investigating facts for

the purposes of appearing as an advocate or giving legal advice, otherwise than by:

(i) conferring with the client, the instructing solicitor, prospective witnesses or experts,

(ii) examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court,

(iii) viewing a place or things by arrangement with the instructing solicitor or the client, or

(iv) library research, (d) act as a person’s only representative in dealings with any court, otherwise than

when actually appearing as an advocate, (e) be the address for service of any document or accept service of any document, (f) commence proceedings or file (other than file in court) or serve any process of any court, (g) conduct the conveyance of any property for any other person, (h) administer any trust estate or fund for any other person, (i) obtain probate or letters of administration for any other person, (j) incorporate companies or provide shelf companies for any other person, (k) prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation, or (l) hold, invest or disburse any funds for any other person. Cab-rank principle 20 A barrister must not make or have any arrangement with any person in connection with any aspect of the barrister’s practice which imposes any obligation on the barrister of such a kind as may prevent the barrister from: (a) accepting any brief to appear for reasons other than those provided by the exceptions to the cab-rank principle in rule 101, 103, 104 or 105, or (b) competing with any other legal practitioner for the work offered by any brief for

reasons other than those referred to in rule 101, 103, 104 or 105. 21 Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is not a solicitor. 22 A barrister who proposes to accept instructions directly from a person who is not a solicitor or officer of a government department or agency whose usual duties include engaging lawyers must: (a) inform the prospective client in writing of: (i) the effect of rules 11 and 13, (ii) the fact that circumstances may require the client to retain an instructing

solicitor at short notice, and possibly during the performance of the work, (iii) any other disadvantage which the barrister believes on reasonable grounds

may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor,

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(iv) the relative capacity of the barrister in performing barristers’ work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them, and

(v) a fair description of the advocacy experience of the barrister, and (b) obtain a written acknowledgement, signed by the prospective client, that he or

she has been informed of the matters in (a) above. Duty to the client 36 A barrister must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the barrister believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation. Independence 48 A barrister must not receive any money or property by way of loan from any client, the relative of a client or a business entity of which a client is a director, partner or manager, during the course of a retainer with that client unless the ordinary business of the client, client’s relative or the business entity includes lending money. Responsible use of court process and privilege 61 A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material then available to the barrister, (b) are appropriate for the robust advancement of the client’s case on its merits, and (c) are not made principally in order to harass or embarrass a person. 64 A barrister must not allege any matter of fact in: (a) any court document settled by the barrister, (b) any submission during any hearing, (c) the course of an opening address, or (d) the course of a closing address or submission on the evidence, unless the barrister believes on reasonable grounds that the factual material

already available provides a proper basis to do so. 65 A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper

basis for it, and (b) the client wishes the allegation to be made, after having been advised of the

seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

66 A barrister may regard the opinion of the instructing solicitor that material which

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is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which rules 64 and 65 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence). Briefs which must be refused or must be returned 101 A barrister must refuse to accept or retain a brief or instructions to appear before a court if: … (k) there are reasonable grounds for the barrister to believe that the failure of the

client to retain an instructing solicitor would, as a real possibility, seriously prejudice the barrister’s ability to advance and protect the client’s interests in accordance with the law including these Rules …

Briefs which may be refused or returned 105 A barrister may refuse or return a brief to appear before a court: (a) if the brief is not offered by a solicitor, (b) if the barrister considers on reasonable grounds that the time or effort required

for the brief threatens to prejudice the barrister’s practice or other professional or personal engagements,

(c) if the instructing solicitor does not agree to be responsible for the payment of the barrister’s fee,

(d) if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement,

(e) … (f) if the solicitor does not comply with a request by the barrister for appropriate

attendances by the instructing solicitor, solicitor’s clerk or client representative for the purposes of:

(i) ensuring that the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief,

(ii) ensuring that the client adequately understands the barrister’s advice, (iii) avoiding any delay in the conduct of any hearing, and (iv) protecting the client or the barrister from any disadvantage or

inconvenience which may, as a real possibility, otherwise be caused, (g) if the barrister’s advice as to the preparation or conduct of the case, not including

its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be,

(h) … (i) … (j) … (k) … (l) … , or

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(m) in accordance with the terms of a costs agreement which provide for return of a brief.

Fees The charging and receipt of fees is now governed to differing extents by the

Legal Profession Uniform Law Application Act 2014 (the Application Act), the Legal

Profession Uniform Law (the Uniform Law), the Legal Profession Uniform Law

Application Regulation (the Application Regulation) and the Legal Profession

Uniform General Rules (the Uniform Rules). These instruments have replaced the

Legal Profession Act 2004 and the Legal Profession Regulation 2005.

The regulation of receiving or holding money by or on behalf of barristers on

account of legal costs on account of legal services is more tightly regulated

under the new statutory and regulatory regime than under the repealed

provisions.

I have extracted, below, the provisions that impact both directly and indirectly

on direct access briefs from private individuals, so far as the question of the

disclosure, charging and recovery of fees is concerned.2 So far as the receipt of

fees in advance is concerned, particular attention should be paid to ss 127 – 129

2 The scope of this paper does not extend to providing particular guidance concerning the obligations of barristers, generally, concerning fee disclosure, the provision of bills of costs or the recovery of fees. While the extracted provisions touch on general obligations they should not be read as a comprehensive collection of the provisions relevant to those matters. In that regard, I commend to readers the paper by Mark Brabazon SC, Legal Costs under the Uniform Law (23.07.15), which can be found on the Bar Association’s website.

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and 133 of the Uniform Law, and to clause 15 of the Application Regulation.

Money received by a barrister on account of fees in advance of the performance

of the legal services are, unquestionably, “trust money” within the meaning

defined by s.129 of the Uniform Law. Section 133 contemplates the passage of

local provisions to regulate the receiving and holding of such funds by

barristers; and clause 15 of the Application Regulation is the provision so

enacted. It sets out stringent requirements. Any barrister wishing to receive

“trust money”, as defined, must comply with clause 15.

I have also extracted s.174 of the Uniform Law, dealing with fee disclosure, and

subsequent provisions concerning clients’ rights to a fee agreement, billing

arrangements, review of bills etc. Each of these provisions should be read

closely to ensure that you comply with all your obligations.

LEGAL PROFESSION UNIFORM LAW (NSW) (2014) Part 4.2 Trust money and trust accounts Division 1 Preliminary 127 Objective The objective of this Part is to ensure that trust money is held by law practices in a manner that protects the interests of the persons for whom or on whose behalf it is held. 128 Definitions (1) In this Law— authorised ADI means an ADI3 authorised to maintain trust accounts to hold trust money under section 149; … 129 Meaning of trust money (1) For the purposes of this Law, trust money is money entrusted to a law practice in the course of or in connection with the provision of legal services by the law practice, and includes—

3 ADI is defined by s.6 to mean an authorized deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.

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(a) money received by the law practice on account of legal costs in advance of providing the services; and (b) … (c) … (d) … (2) … 133 Receiving or holding money by or on behalf of barristers on account of legal

costs for legal services It is intended that jurisdictional legislation may include provisions prohibiting, regulating or otherwise providing for the receiving or holding of money by or on behalf of a barrister, on account of legal costs for legal services, in advance of the provision by the barrister of the legal services. 174 Disclosure obligations of law practice regarding clients

(1) Main disclosure requirement A law practice-

(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

(b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client-

together with the information referred to in subsection (2). (2) Additional information to be provided

Information provided under- (a) subsection (1)(a) must include information about the client’s rights- (i) to negotiate a costs agreement with the law practice; and (ii) to negotiate the billing method (for example, by reference to timing

or task); and (iii) to receive a bill from the law practice and to request an itemised bill

after receiving a bill that is not itemised or is only partially itemised; and

(iv) to seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs; or

(b) subsection (1)(b) must include a sufficient and reasonable amount of information about the impact of the change on the legal costs that will be payable to allow the client to make informed decisions about the future conduct of the matter.

(3) Client’s consent and understanding If a disclosure is made under subsection (1), the law practice must take all

reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.

(4) Exception for legal costs below lower threshold A disclosure is not required to be made under subsection (1) if the total legal costs

in the matter (excluding GST and disbursements) are not likely to exceed the amount specified in the Uniform Rules for the purposes of this subsection (the

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"lower threshold" ), but the law practice may nevertheless choose to provide the client with the uniform standard disclosure form referred to in subsection (5).

(5) Alternative disclosure for legal costs below higher threshold If the total legal costs in a matter (excluding GST and disbursements) are not

likely to exceed the amount specified in the Uniform Rules for the purposes of this subsection (the "higher threshold" ), the law practice may, instead of making a disclosure under subsection (1), make a disclosure under this subsection by providing the client with the uniform standard disclosure form prescribed by the Uniform Rules for the purposes of this subsection.

(5A) To avoid doubt, the uniform standard disclosure form prescribed by the Uniform Rules for the purposes of subsection (5) may require the disclosure of GST or disbursements or both.

(6) Disclosure to be written A disclosure under this section must be made in writing, but the requirement for

writing does not affect the law practice’s obligations under subsection (3). (7) Change in amount of total costs-where previously below lower threshold If the

law practice has not made a disclosure, whether under subsection (1) or (5), because the total legal costs in the matter are not likely to exceed the lower threshold, the law practice must, when or as soon as practicable after the law practice becomes aware (or ought reasonably become aware) that the total legal costs (excluding GST and disbursements) are likely to exceed the lower threshold-

(a) inform the client in writing of that expectation; and (b) make the disclosure required by subsection (1) or (if applicable)

subsection (5). (8) Change in amount of total costs-where previously below higher threshold If the

law practice has not made a disclosure under subsection (1) but has made a disclosure under subsection (5) because the total legal costs in the matter are not likely to exceed the higher threshold, the law practice must, when or as soon as practicable after the law practice becomes aware (or ought reasonably become aware) that the total legal costs (excluding GST and disbursements) are likely to exceed the higher threshold-

(a) inform the client in writing of that expectation; and (b) make the disclosure required by subsection (1). 177 Disclosure obligations regarding settlement of litigious matters (1) If a law practice negotiates the settlement of a litigious matter on behalf of a

client, the law practice must disclose to the client, before the settlement is executed-

(a) a reasonable estimate of the amount of legal costs payable by the client if the matter is settled (including any legal costs of another party that the client is to pay); and

(b) a reasonable estimate of any contributions towards those costs likely to be received from another party.

(2) A law practice retained on behalf of a client by another law practice is not required to make a disclosure to the client under subsection (1), if the other law practice makes the disclosure to the client before the settlement is executed.

179 Client’s right to costs agreement A client of a law practice has the right to require and to have a negotiated costs

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agreement with the law practice. 181 Conditional costs agreements (1) A costs agreement (a “conditional costs agreement") may provide that the

payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate.

(2) A conditional costs agreement must- (a) be in writing and in plain language; and (b) set out the circumstances that constitute the successful outcome of the

matter to which it relates. (3) A conditional costs agreement must- (a) be signed by the client; and (b) include a statement that the client has been informed of the client’s rights

to seek independent legal advice before entering into the agreement. (4) A conditional costs agreement must contain a cooling-off period of not less than 5

clear business days during which the client, by written notice, may terminate the agreement, but this requirement does not apply where the agreement is made between law practices only.

(5) If a client terminates a conditional costs agreement within the cooling-off period, the law practice-

(a) may recover only those legal costs in respect of legal services performed for the client before that termination that were performed on the instructions of the client and with the client’s knowledge that the legal services would be performed during that period; and

(b) in particular, may not recover any uplift fee. (6) A conditional costs agreement may provide for disbursements to be paid

irrespective of the outcome of the matter. (7) A conditional costs agreement may relate to any matter, except a matter that

involves- (a) criminal proceedings; or (b) proceedings under the Family Law Act 1975 of the Commonwealth; or (c) proceedings under legislation specified in the Uniform Rules for the

purposes of this section. (8) A contravention of provisions of this Law or the Uniform Rules relating to

conditional costs agreements by a law practice is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.

186 Form of bills A bill may be in the form of a lump sum bill or an itemised bill. 187 Request for itemised bills (1) If a bill is given by a law practice in the form of a lump sum bill, any person who

is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.

(2) A request for an itemised bill must be made within 30 days after the date on which the legal costs become payable.

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(3) The law practice must comply with the request within 21 days after the date on which the request is made in accordance with subsection (2).

(4) If the person making the request is liable to pay only a part of the legal costs to which the bill relates, the request for an itemised bill may only be made in relation to those costs that the person is liable to pay.

189 Giving bills A bill is to be given to a client in accordance with the Uniform Rules. 190 Progress reports (1) A law practice must give a client, on reasonable request, without charge and

within a reasonable period, a written report of the legal costs incurred by the client to date, or since the last bill (if any), in the matter.

(2) A law practice retained on behalf of a client by another law practice is not required to give a report to the client under subsection (1), but must disclose to the other law practice any information necessary for the other law practice to comply with that subsection.

(3) Subsection (2) does not apply if the other law practice ceases to act for the client in the matter when the law practice is retained.

191 Charging for bills prohibited A law practice must not make a charge for preparing or giving a bill, and any charge made for that purpose is not recoverable by the law practice. 192 Notification of client’s rights A law practice must ensure that a bill includes or is accompanied by a written statement setting out- (a) the avenues that are open to the client in the event of a dispute in relation

to legal costs; and (b) any time limits that apply to the taking of any action referred to in

paragraph (a). 193 Interim bills (1) A law practice may give a person an interim bill covering part only of the legal

services the law practice was retained to provide. (2) Legal costs that are the subject of an interim bill may be assessed under Division

7, either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has previously been assessed or paid.

LEGAL PROFESSION UNIFORM GENERAL RULES 2015 (General Rules) PART 4.3 - LEGAL COSTS 72 Alternative disclosure for legal costs below higher threshold For the purposes of section 174 (5) of the Uniform Law, the prescribed form of the uniform standard disclosure form:

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(a) … (b) for barristers-is Form 2 in Schedule 1. Note : Section 174 of the Uniform Law contemplates Uniform Rules prescribing the

amounts of the lower threshold and the higher threshold. Clause 18 of Schedule 4 to the Uniform Law provides that, until relevant Uniform Rules take effect, the lower threshold is $750 and the higher threshold is $3000. Both thresholds are exclusive of GST and disbursements.

73 Giving bills (1) For the purposes of section 189 of the Uniform Law, a bill given by a law practice

to a client is to be given: (a) by personal delivery to the client or an agent of the client, or (b) by sending it by post to the client or an agent of the client: (i) at the usual or last known business or residential address of the

client or an agent of the client, or (ii) at the address nominated to the law practice for that purpose by the

client or an agent of the client, or (c) by leaving a copy of the bill, addressed to the client: (i) at the usual or last known business or residential address of the client

or an agent of the client, or (ii) at the address nominated to the law practice for that purpose by the

client or an agent of the client, or (d) in the case of a client whose address includes a DX address in Australia-by

leaving a copy of the bill, addressed to the client, in the DX box at that address or in another DX box for transmission to that DX box, or

(e) in the case of a client who has consented to receiving bills by means of a fax sent to a fax number specified by the client-by faxing a copy of the bill, addressed to the client, to that fax number, or

(f) in the case of a client who has consented to receiving bills sent electronically to the client or an agent of the client by means of:

(i) the client’s usual email address or mobile phone number (or another email address or mobile phone number specified by the client)-by transmitting the bill electronically, addressed to the client, to that address or number, or

(ii) different arrangements agreed to by the client or an agent of the client-by transmitting the bill electronically in accordance with those arrangements, or

(g) in the case of service on a corporation-by serving a copy of the bill on the corporation in any manner in which service of a notice or document may, by law, be served on the corporation.

(2) In this rule, "agent" , in relation to a person, includes a law practice that, or an Australian legal practitioner who, has authority to accept service of legal process on behalf of the person. 74 Itemised bill higher than lump sum bill (1) If the total amount of the legal costs specified in an itemised bill given by a law

practice exceeds the amount previously specified by the law practice in a lump sum bill for the same matter, the additional costs may be recovered by the law

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practice only if: (a) when the lump sum bill was given, the law practice made an appropriately

worded disclosure in writing to the client indicating that the total amount of the legal costs specified in any itemised bill may be higher than the amount specified in the lump sum bill, and

(b) the costs are determined to be payable after a costs assessment or after a binding determination under section 292 of the Uniform Law.

(2) This rule does not affect the operation of any costs agreement in relation to a matter.

LEGAL PROFESSION UNIFORM LAW APPLICATION REGULATION 2015 15 Receipt of trust money by barrister (1) The purpose of this clause is to provide for the receiving or holding of money by

or on behalf of a barrister as contemplated by section 133 of the Uniform Law. (2) Trust money may be received and held by a barrister on account of legal costs for

legal services in advance of the provision by the barrister of the legal services in the following circumstances:

(a) the barrister is practising as a sole practitioner and the money is received in connection with instructions accepted by the barrister directly from a person who is not a solicitor,

(b) the barrister maintains an account with an ADI for the sole purpose of holding trust money received in connection with the barrister’s law practice (the "trust money account" ),

(c) the barrister notifies the Bar Association of the following within 14 days of opening the trust money account:

(i) the name of the ADI with which the trust money account has been opened, (ii) the date on which the trust money account was opened, (iii) the account number of the trust money account, (d) the money is deposited in the trust money account as soon as practicable after the barrister receives the money, (e) the money remains deposited in the trust money account until: (i) a bill is given to the client, or (ii) the money is refunded to the client, or (iii) the money is paid to a solicitor who is later engaged by the client in the matter, (f) the trust money account does not have, or is not linked to, any credit or

mortgage facility, including (but not limited to) a line of credit, overdraft facility or mortgage offset facility,

(g) the barrister provides to the person from whom the money is received, as soon as practicable after that money is received, a written receipt by the barrister on which is recorded the following:

(i) the date the receipt is made out, (ii) the date the money was received, (iii) the amount of money received, (iv) the name of the person from whom the money was received, (v) particulars sufficient to identify the purpose for which the money was received,

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(vi) the circumstances in which the money may be paid from the trust money account, (h) the barrister appoints a person who is qualified to be appointed as an

external examiner under the Legal Profession Uniform General Rules 2015 to carry out an annual examination, for the period 1 April to 31 March, of the trust money account and provides to the Bar Association a copy of the examination report (in a form approved by the Bar Council) not later than 7 June following the end of that period.

(3) A copy of a receipt provided by a barrister under subclause (1) (g) must be kept by the barrister at least until the end of the period of 7 years from the date of the receipt or until the completion of the matter in relation to which the receipt was issued, whichever occurs later.

(4) An examination of a trust money account of a barrister under this clause is not required to be carried out until the end of the year ending on 31 March 2017.

(5) The examination must also cover any period after the commencement of this Regulation and before 1 April 2017 during which the account existed and is also to apply to any account existing during that period that was kept by the barrister under clause 16.

29 Disclosure requirements regarding offers of compromise-clause 5 of Schedule 1 to of the application Act (1) This clause has effect for the purposes of clause 5 of Schedule 1 to the application

Act, and applies where a client of a law practice receives an offer of compromise on a claim for personal injury damages.

(2) The law practice must disclose to the client information in relation to the operation of clause 5 of Schedule 1 to the application Act in respect of any refusal by the client to accept the offer of compromise.

(3) The information must include the following: (a) a statement that the offer of compromise has been made and setting out its

details or a summary of them, (b) a statement about the reasonableness of the offer, (c) a statement about the general effect of declining a reasonable offer of

compromise, in that the court in which the proceedings are taken on the claim may award costs on an indemnity basis in respect of legal services provided after the offer is made,

(d) a statement about the specific effect that declining the offer, if reasonable, will or may have on the interests of the parties.

(4) Disclosure under this clause must be made in writing: (a) as soon as practicable after the offer of compromise is made, and (b) before the law practice communicates to other parties or the court that the

client accepts or declines the offer. General Pointers

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In direct access matters, as in all others, there is no substitute for applying

common sense to each situation as it presents itself. I would suggest, however,

that you attempt in every direct access case to do the following:

• Explain at the outset the nature of Barristers’ work and the limitations

imposed by the Bar Rules upon what you are permitted to do. Take the

client through the matters in Bar Rule 22 orally and comply strictly with

that provision, including by the provision of the required written

notices.

• If receiving fees in advance of work done, comply, to the letter, with the

requirements set out in clause 15 of the Legal Profession Uniform Law

Application Regulation 2015.

• Manage your client’s expectations from an early stage. Give early and

realistic advice. Do not make promises you cannot keep, or give the

client false hope concerning the likely outcome of the litigation.

• Obtain instructions with plenty of time to spare.

• Make contemporaneous file notes of every conference or conversation

with your client, recording direct speech where what is said might

become crucial.

• Obtain signed instructions, where necessary recording the fact that your

client has provided those instructions contrary to your advice.

• In written instructions to settle the case, record any advice you provided

to the client concerning the possibility of a more, or less, favourable

outcome. Ensure that you give clear advice concerning the impact on the

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amount he or she will ultimately receive of any costs liability the client

has to you or anyone else.

• Always obtain signed, written instructions if instructed to reject an offer of

settlement. Record clearly in those instructions the advice you provided

to your client concerning the merits or otherwise of the offer.

• Give clear advice about the general desirability of a negotiated outcome.

• Send confirmatory letters of advice given and instructions received. Have

your client sign such letters as an acknowledgment of the advice you

gave and the instructions you received.

• Be courteous at all times in your dealings with the client, but, equally, be

firm and clear in your advice.

• After you have accepted a direct access brief, continue to monitor whether

it remains a matter suitable for such an arrangement. If it ceases to be,

and there is a real possibility that acting for the client without an

instructing solicitor could seriously prejudice your ability to advance

and protect the client’s interests, you are obliged to return the brief: Bar

Rule 101(k).

• If a solicitor is brought into the case, ensure that no further direct

communication occurs between you and the client in the absence of the

solicitor. It is essential that the proper lines of communication are

unambiguous.

Conclusion

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Direct access work is now more closely regulated than ever before. The question

of the suitability or otherwise of a matter for a direct access brief should be

considered closely from the outset. That assessment should be made with close

attention to the Bar Rules, particularly the limitations imposed by the definition

of “barristers’ work”. Those restrictions will render a significant number of

cases unsuitable.

Strict adherence to the rules concerning the receipt of “trust money” should be

observed at all times.

Written instructions should be obtained wherever appropriate, and

contemporaneous file notes made. A written record of what has passed between

you and your client is your best protection if there should ever be a dispute.

30 March 2016