Can I instruct a Barrister?
Who is able to instruct a barrister is controlled by the Bar Standards Board (BSB). The details of this can be found in its Handbook (The BSB Handbook (barstandardsboard.org.uk)).
Rule C21 sets out the circumstances in which barristers can accept instructions, and Rule C22 sets out what a barrister must do when accepting instructions. This includes where a barrister receives instructions from a ‘professional client’, that confirmation of acceptance should be sent to that professional client.
Part 6 of the Handbook defines one of the categories of professional clients as ‘any person authorised by another approved regulator or licensing authority’. For those regulated by CILEx Regulation, this will include Chartered Legal Executives and CILEX Practitioners, as they are authorised persons under s18 of the Legal Services Act 2007.
Therefore, those members who are not Chartered Legal Executives or CILEX Practitioner, are unable to instruct a barrister as a professional client.
However, two further schemes exist that allow barristers to be instructed directly, rather than via a professional client: Licensed Access and Public Access.
The BSB can grant a license to any organisation or individual suitable to instruct barristers because they have expertise in a particular area of law. This way, they can instruct counsel for advice and in some circumstances representation. A license holder can instruct on their own behalf or on behalf of others. This scheme allows Fellows (and other licensed professionals) who are independent practitioners to instruct a barrister, but only to obtain an opinion. They must have professional indemnity insurance and may not instruct counsel in litigation proceedings.
This scheme allows a lay person to instruct counsel directly. Not all barristers are authorised to accept instructions this way, they must be authorised under the Public Access scheme. The lay person can use an intermediary to instruct counsel on their behalf. A member could instruct a barrister directly to act in a personal matter, or act as an intermediary on behalf of someone else. However, they must not be conducting the underlying litigation and it is hard to see how a CILEX member practising independently (without litigation rights) would be involved in a matter that involved instructing a barrister where there was no underlying litigation. The onus is on the barrister to be sure the intermediary is not conducting the litigation, but that is not a get-out for members as they should not be acting at all in litigation if they are not employed by a solicitor: effectively the client should be conducting the litigation themselves.
Finally, the rules relating to the instruction of barristers is controlled by the BSB, and as a member you have the responsibility to check that the information is up to date, by referring to the BSB handbook and website.
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