Friday 25 January 2013 by Catherine Baksi
Solicitors have been warned to protect themselves against new terms governing their relationship with barristers which come into effect next week. In a practice note, the Law Society said the Bar Council's new standard contractual terms of business, which for the first time enable barristers to sue for their fees, put solicitors at a disadvantage.
The Bar Council said it was 'surprised and disappointed' by the warning, which is the latest move in a decade-long debate between the two professions about putting relationships on a more formal footing. Rather than operate on the traditional default of non-contractual arrangements, barristers have increasingly sought to agree contractual terms with solicitors to mitigate the risk of non-payment.
Negotiations broke down in 2008, but last year the Legal Services Board approved an amendment to the bar's code of conduct that the cab rank rule would apply only where work was offered on the Bar Council's new contractual terms, which take effect from 31 January.
The contract requires payment within 30 days of receipt of an invoice regardless of whether a solicitor has been put in funds by the client. Where solicitors fail to pay, the terms replace the Withdrawal of Credit List with an advisory List of Defaulting Solicitors, from whom barristers will not be obliged to accept work.
The Law Society said that as the contract was adopted unilaterally by the bar, the balance of obligations is 'weighted strongly in favour of barristers'. Of particular concern are clauses that tighten barristers' intellectual property rights, exclude liability for the barrister and permit higher hourly rates.
The practice note alerts solicitors to the contract provisions and suggests a model letter to seek changes to its terms.
Law Society president Lucy Scott-Moncrieff said there should be a contract to bring the commercial relationship in line with standard practice, but 'there must be a balance between the two interests and most importantly, that of the client.'
She said: 'The bar's proposal favours the barrister and gives the solicitor, and therefore the client, insufficient control or effective remedy in the event of inadequate performance by the barrister.'
In the absence of an agreement between the two professions, she said the Society had 'no alternative' but to issue guidance to solicitors, warning them of provisions which could be contrary to their interests and suggesting alternatives.
Visit the Law Society website to read the practice note.