ࡱ> c Gbjbj Qff& -&&k p{{{8$ M&"L#)#)#)#%{) *̒ΒΒΒΒΒΒ$s)T{J0%"%J0J0{{)#)#999J0{)#{)#̒9J0̒99)#`Ȝs0^܊F0M"}N1}}{+r,9-].+++b6.+++MJ0J0J0J0}+++++++++& 1:  Development of authorisation to practise arrangements Consultation paper March 2010 Development of authorisation to practise arrangements consultation paper Contents Executive summary 2Part I: Introduction About the Bar Standards Board About the Code of Conduct review Purpose of the consultation Response to this consultation paper5 5 6 6 7 Part II: The Barristers Register 8Part III: Development of an authorisation to practise regime Background Current arrangements Proposed changes 10 10 10 14Part IV: Barristers without full practising rights Background Categories of practising barristers 20 20 21 Part V: Barristers not entitled to practise Background Proposed solutions 26 26 32Part VI: Conclusions Equality and diversity impact Timing of implementation 37 37 37Annex 1:List of questions 38Annex 2: History of regulation of non-practising barristers 40Annex 3: Current Code provisions on holding out 43Annex 4: Core duties 44Annex 5: List of consultees 45 Executive Summary This paper forms part of the Bar Standards Boards (BSB) commitment to a comprehensive review of the Bars Code of Conduct. Given the complexity of the Code, the BSB decided to split the review into discrete tranches. The BSB consulted in March 2009 on proposals for new Conduct Rules which seek to replace the existing rules on professional conduct and standards and a further consultation paper will follow later in the year on revised Practising Rules. In this paper, the BSB seeks views on proposals for new authorisation to practise arrangements. Principally, these proposals arise from the advent of the Legal Services Act 2007 and in particular section 13(2) which requires individuals wishing to provide reserved legal activities to be authorised to do so by the relevant approved regulator. It is also good regulatory practice to review practising arrangements periodically to ensure that they have sufficient rigour and proportionality. The BSB has therefore conducted detailed analysis of the current practising arrangements operated by the BSB (and the Bar Council). This has included not only a review of the arrangements for practising barristers but also for those who have no or limited entitlements to practise as a barrister. In the light of that review, the BSB has developed a number of proposals to enhance the current arrangements and to provide greater clarity for both the Bar and for users of their services on what is meant by practising as a barrister. We now invite comments on three broad topics: The introduction of an authorisation to practise regime; The regulatory arrangements for barristers who do not have full practising entitlements; and The relationship of the above to the Barristers Register. In summary the issues and proposals for each are: Authorisation to practise regime The BSB believes that the authorisation requirements of the Legal Services Act necessitates a strengthened approach to the practising certificate renewal process which is more directly linked to compliance with the criteria that must be met in order to practise as a barrister eg CPD and professional indemnity insurance cover. The current arrangements for ensuring compliance with these requirements are not linked nor are they linked to the practising certificate renewal process. The BSB believes that this approach is no longer defensible nor within the expectations of the authorisation to practise requirements in the Act. Under these proposals, therefore, the practising certificate will become a certificate of entitlement to practise. A new process is proposed which will see an annual renewal form being completed by all barristers wishing to obtain a practising certificate. The form will: Verify current contact details Verify status and entitlement to exercise reserved legal activities Declare the number of CPD hours completed in the last calendar year Declare that adequate indemnity insurance cover has been obtained and paid for Provide a declaration of truth for signature Allied to the authorisation to practise regime are proposed changes to the monitoring of CPD compliance. The BSB believes that it would be disproportionate automatically to prohibit a barrister who has not completed their required CPD hours from being authorised to practise. Non-compliance would still amount to professional misconduct and would be dealt with, as currently, under the disciplinary process of the BSB. It is proposed that the new authorisation to practise regime would be introduced towards the end of 2011 so that it is in place for renewals at the start of 2012. Transitional arrangements will be required and will be developed once the new arrangements have been finalised. Barristers without full entitlements to practise When reviewing the practising arrangements for barristers, it became apparent that there are a number of categories of barristers who, for historic and transitional reasons, have different or limited entitlements to practise. This creates uncertainty and confusion both for the profession and for members of the public. The BSB has reviewed these categories and their various entitlements and proposed a number of measures to regularise the position. In particular: Practising certificates and the Register will be explicit about the reserved legal activities which barristers are authorised to undertake; Employed barristers whose entitlements are not known must provide the necessary information for the BSB to determine their level of authorisation. Failure to do so will result in those barristers not being entitled to exercise a reserved legal activity; Only those employed barristers who meet all the requirements for conducting litigation will be authorised to do so; Those barristers not entitled to practise but who provide legal services can be separated into three categories: Those who supply legal services to the public and are not in a regulated firm; Those who are employed by a legal services firm that is regulated by another approved regulator and supply legal services to clients of their employer; and Those who supply legal services to their employer only. Each category will be dealt with differently depending on their respective risk to the public and the reputation of the profession. Namely: Those in the first category will be required to adhere to the current guidance on holding out as a barrister and, as appropriate, will be required, if they have reason to believe that the client knows that they are a barrister, to provide a disclaimer to the effect that they may not be trained to the same level as an authorised barrister, they are not required to have insurance, they have no right to undertake reserved legal activities and they are not bound by the same standards of conduct as authorised barristers; Those in the second category will not be permitted to hold themselves out as barristers when supplying legal services but the disclaimer requirement for those in the first category will not apply; Those in the third category will not be permitted to hold themselves out as a barrister when supplying legal services but will be permitted to refer to themselves as a barrister who is not permitted to practise when describing their qualifications to their employer or potential employer. Relationship with the Barristers Register The Barristers Register will provide the public face for the new authorisation to practise regime and will reflect individual barristers practising entitlements. It will also be used to help explain to the profession and to the public the final authorisation regime. Conclusion The proposed changes will impact to varying degrees on all members of the Bar. The BSB is keen to secure a wide range of responses to the proposals set out in this paper. Following the consultation process and agreement on the final arrangements for authorisation to practise, the BSB will undertake a programme of education and publication so as to ensure that, as far as possible, all members of the Bar are aware of the new arrangements. Part I: Introduction About the Bar Standards Board The Bar Standards Board (BSB) was established in January 2006 as a result of the General Council of the Bar (Bar Council) separating its regulatory and representative functions. As the independent regulatory arm of the Bar Council, the BSB is responsible for regulating barristers called to the Bar of England and Wales. In its strategic plan for 2007 2009, the BSB committed to reviewing the Code of Conduct of the Bar of England and Wales (the Code). The aim of the review is to ensure that the rules governing barristers are fit for purpose, accessible to both barristers and users of their services and not unduly restrictive or anti-competitive. The strategic plan also set out the BSBs overriding strategic objectives which are central to the effective regulation of the Bar and which the BSB has at the centre of its focus when developing new rules or policy. They are: Protecting Consumers: To establish systems to identify areas of risk to consumers; to take action to remedy poor performance by barristers (or members of the profession);where things go wrong, to provide an efficient and fair complaints and disciplinary system. Access to Justice: To promote accessible and flexible high quality legal services in a competitive market. Independent Regulation: To be recognised as a respected, independent regulator operating according to best regulatory principles with the confidence of the Legal Services Board, consumers, the Bar and other stakeholders. Excellence and Quality: To promote excellence and quality within the profession and ensure that those who qualify as barristers have the right level of skills and knowledge to provide services to the public, including employers. Diversity: To promote diversity in the profession so that those with theright abilities are able to make a career as a barrister irrespective of their background, race, religion, gender, sexual orientation, disability or age. About the Legal Services Act 2007 The Legal Services Act 2007 (the Act) establishes a new regime for the provision and regulation of legal services. It creates the Legal Services Board, the oversight regulator of the legal profession. Individuals who wish to provide reserved legal services must be regulated by an Approved Regulator. The Bar Council is the Approved Regulator for the Bar but has delegated its regulatory functions to the BSB. The Act identifies six types of reserved legal activities: the exercise of a right of audience the conduct of litigation reserved instrument activities probate activities notarial activities, and the administration of oaths. Under the Act, the BSB is able to authorise barristers to undertake reserved legal activities, with the exception of notarial activities. In addition to regulating reserved legal activities, the BSB also regulates practising barristers who undertake non-reserved legal activities (including giving oral and written legal advice). It also regulates, to a limited extent, barristers who are not considered to be practising but nonetheless give legal advice. This is explained further in Part V. As the regulatory arm of the Bar Council, the BSB is required to discharge its regulatory functions, so far as is reasonably practicable, in a way which is compatible with the regulatory objectives of the Act. The regulatory objectives are: protecting and promoting the public interest supporting the constitutional principle of the rule of law improving access to justice protecting and promoting the interests of consumers promoting competition in the provision of legal services encouraging an independent, strong, diverse and effective legal profession increasing public understanding of the citizen's legal rights and duties, and promoting and maintaining adherence to the professional principles. The BSB must ensure that its policies and procedures are consistent with these objectives as well as its own strategic goals. About the Code of Conduct review The review of the Code has been separated into two discrete parts: Revision of the rules relating to professional conduct and standards into new Conduct Rules; and Revision of the rules relating to business and practising requirements at the Bar into new Practising Rules. This consultation paper relates to the Practising Rules and, in particular, the arrangements for authorisation to practise as a barrister. Purpose of the consultation The purpose of this consultation is to seek views of all interested parties regarding some key changes to barristers practising arrangements. This consultation covers three broad issues: the introduction of an authorisation to practise regime the regulatory arrangements for barristers who do not have full practising entitlements, and the relationship of the above to the Barristers Register. The proposals set out in this paper will, in some way, affect all members of the Bar. The Bar and others with an interest in the regulation of the profession are encouraged to comment on both the broad principles of the proposals and the practicalities of how they might operate. It is important that any potential flaws in the proposals are identified and any serious objections, so far as possible, are taken into account. The final arrangements for authorisation to practise and the regulatory arrangements for those barristers who do not have full practising entitlements will receive the widest publication to ensure maximum coverage both within and outside of the profession. Responses to this consultation paper A list of those to whom this consultation paper is being sent is attached at Annex 5. This list is not exclusive and responses are welcome from anyone who has evidence or views about the issues raised in this paper. Consultees are welcome to comment on all or only some of the issues set out in this paper or to provide comments on issues not specifically covered by the questions. The BSB will summarise the responses received and will publish responses on its website. If you do not want your response published, please make that clear when you reply to us. Responses to this consultation must arrive by 1 June 2010 and should be sent to: Sam Condry Bar Standards Board 289-293 High Holborn London WC1V 7HZ scondry@barstandardsboard.org.uk Part II: The Barristers Register The BSB concluded in August 2007 that there was a clear need to provide the public with information about who is and is not permitted to practise as a barrister and, to this end, an online register should be developed. Accordingly, the BSB developed the Barristers Register, an online system that provides basic information about barristers who are permitted to provide legal services. The purpose of the Register is to provide information, in a readily available format, about the status of members of the profession in order to allow the public to quickly and accurately identify the status of someone who professes to be a practising barrister. The first phase of the Barristers Register was launched on 26 October 2009 and includes the following basic information about barristers who are permitted to practise: full name status (eg self-employed or employed) date of Call to the Bar practising address whether the barrister is a pupil supervisor whether the barrister undertakes Public Access work, and publishable disciplinary findings. The above information was already available in different sections of the BSB and Bar Council websites but now the information is available in a single entry against an individual barrister. You can view the Barristers Register at the following website: http://www.barstandardsboard.org.uk/qualityassurance/onlineregister/ The development of the Register has highlighted the complexities and inadequacies of the current regulatory arrangements on two significant issues: The practising certificate regime and the absence of a connection to the basic practising requirements in the Code; and The regulation of barristers with limited authorisation to practise and of those who are not permitted to practise as barristers at all. The purpose of this paper is to explore these issues by considering the current arrangements and putting forward and seeking views on proposals for an improved regime in both regulatory and administrative terms which takes account of the Acts requirements. It is intended that the Register will be developed in accordance with changes in the regulatory regime resulting from this and future consultations. The Register and accompanying information will provide a useful medium for publicising the final authorisation to practise arrangements and educating the Bar on what is required from them. It will also provide a valuable means of informing users of barristers services on what is meant by being authorised to practise. Part III: Development of an authorisation to practise regime Background It is necessary for a modern regulator to keep its procedures under review to ensure they are fit for purpose and meet both the organisations own strategic objectives and the regulatory objectives in the Act. An important function of a regulator is to have in place robust arrangements to regulate a professionals ability to practise. The Act provides at s13 (2) that A person is entitled to carry on a reserved legal activity where the person is an authorised person in relation to that activity. The reserved legal activities are listed in paragraph  REF _Ref249145295 \r \h 5 above. According to s18 of the Act, an authorised person is a person who is authorised to carry on the relevant activity by a relevant approved regulator. In the light of the Act, the BSB must have in place arrangements that explicitly grant barristers authorisation to undertake specified reserved legal activities. The BSB has therefore undertaken an extensive review of its current arrangements for issuing practising certificates and also examined the approach adopted by other professional regulators. Whilst the current arrangements do not on the face of it create any practical or public interest difficulties, the BSB believes that the authorisation to practise regime proposed under the Act requires a strengthened approach to the process for the renewal of barristers practising certificates which is more directly linked to compliance with the criteria that must be met in order to practise as a barrister and to the reserved rights a barrister may exercise. The BSB has therefore developed a series of proposals which it believes will provide for a robust regime for granting authorisation that is in the public interest. The proposals will benefit individual practitioners and provide greater clarity to those who use barristers services. Additionally, the proposals will enable more joined-up administration of the BSBs internal systems and facilitate a proportionate response to non-compliance with the practising requirements. Summary of current arrangements The present practising requirements are detailed in Part II of the current Code. After a barrister completes pupillage, the ongoing requirements are: complying with the annual Continuing Professional Development (CPD) requirements (paragraph 202(b) of the Code); providing the Bar Council with a current practice address (paragraph 202(d) of the Code); having adequate professional indemnity cover in place (paragraph 204(b) of the Code) and having paid when due the insurance premium (paragraph 404.2(a) of the Code); having a current practising certificate issued by the Bar Council (paragraph 202(c) of the Code); and in the case of practising barristers who exercise rights of audience and those supplying legal services to members of the public, having complied with the three-year rule (paragraph 203.1 and 204(a) of the Code). The BSBs internal arrangements for ensuring compliance with these requirements are not currently linked. For example, barristers can renew their practising certificates without being up to date with their CPD requirements or having paid for professional indemnity insurance cover. Whilst the Practising Certificate Regulations (Annex D to the Code, Regulation 15) allow the Bar Council to refuse to issue practising certificates for failure to comply with the above requirements, this provision has not been enforced since the practising certificate regime was introduced in 2001. The BSB believes that this approach is no longer defensible. It is in the public interest that the BSB develop a robust regime for granting and renewing barristers permission to practise. This will ensure that barristers meet the basic requirements before being permitted to practise and that both the public and the profession can rightly have confidence in the information in the Barristers Register. To this end, the BSB has developed proposals which will introduce an explicit system of authorisation. This will put the interests of the consumer at the forefront of the granting and renewal of authorisation to practise. In order to understand the proposed changes, it is helpful to outline the current arrangements in respect of the practising requirements and to explain why the BSB believes that the current arrangements should be strengthened. Practising certificates In order to obtain a practising certificate for the first time or after a break in practice, a barrister must complete a form to demonstrate that they are entitled to practise. Barristers who provide a complete set of information and pay the requisite fee are issued with a practising certificate. If the information provided is incomplete (or the requisite fee not paid), the Bar Council will not issue a practising certificate. The process for annual renewal of practising certificates is less formal. Each year, the Bar Councils Records Office sends a notice to all practising barristers reminding them that they need to pay an annual fee to renew their practising certificates. Barristers can renew their practising certificates by paying the requisite fee and there is no obligation to provide evidence of on-going compliance with the practising requirements described in paragraph  REF _Ref245873911 \r \h 27 above. For self-employed barristers, the practising certificate fee is due on 1 January each year and the previous years certificate expires on that date. Technically, barristers who continue to practise after 1 January without paying the renewal fee are in breach of the Code; however, in the interest of proportionality and managing internal workloads, enforcement action is not taken immediately. If payment is made after the due date, late-payment surcharges are added to the practising certificate fee. Barristers who do not pay the practising certificate fee by the end of March are referred to the BSBs Complaints Team. Their status on the Bar Councils records continues to be listed as practising, but it is noted that the practising certificate fee is outstanding. Under the current arrangements, the Complaints Team will issue an administrative warning or fine pursuant to paragraph 901.1 of the Code. If the barrister pays the fine and the practising certificate fee within a stipulated period of time, no further action is taken. If the barrister does not pay the fine or the practising certificate fee, a formal complaint of professional misconduct is raised against the barrister and it is referred to the Complaints Committee, which will consider initiating disciplinary proceedings. For the employed Bar, the practising certificate fee is due by 6 April and the previous practising certificates are valid until that date. If payment is made after 4 May, late-payment surcharges are added to the fee. For historic reasons, employed barristers who have not paid the practising certificate fee by July have their status changed to non-practising and they are not referred to the Complaints Team. The BSB has concluded that the current approach is not robust enough. At present, holding a practising certificate merely reflects payment of the requisite fee. It is not a certificate of full compliance with the basic practising requirements. Additionally, the BSB has concluded that it is no longer appropriate to have different arrangements for annual renewals for self-employed and employed barristers. The BSB believes that it should operate a system that has identical arrangements, processes, and sanctions for self-employed and employed barristers who wish to renew their authorisation to practise. The BSB believes that it is imperative, for the protection of the public and maintaining standards within the profession, that the Barristers Register accurately reflects who is permitted to practise as a barrister. If barristers have not fully complied with the practising requirements, they should not continue to be listed on the BSBs records, nor shown on the Barristers Register, as practising barristers. This is particularly important in light of section 14 of the Act, which makes it a criminal offence (punishable by up to 2 years in prison and a fine) for an individual to carry out a reserved legal activity without being authorised to do so.  For a transitional period, barristers who hold a practising certificate are deemed to be authorised in respect of a number of reserved activities, but in the longer term, the BSB must develop an authorisation regime which meets the regulatory objectives. For the reasons described above, the BSB believes that the current system for issuing practising certificates must be revised in order to command the confidence of the public, the profession and to meet the requirements of the Act. Professional indemnity insurance All self-employed barristers are required to have professional indemnity insurance through the Bar Mutual Indemnity Fund (BMIF) and to pay immediately when due the appropriate insurance premium. All employed barristers who provide legal services to members of the public are required to have adequate professional indemnity insurance through their employer; however, the BSB does not undertake any checks to confirm that they have insurance. Employed barristers who provide legal services to their employer only (and not to members of the public) are not obliged under the Code to have indemnity insurance. In these cases, issues of inadequate advice will tend to be dealt with through the contractual relationship between employer and employee. It is however open to barristers in these circumstances to obtain their own insurance. The BMIF is a separate organisation from the Bar Council and BSB and its policy year runs from April to March. If the BMIF discover from their own checks that barristers are practising but have not paid their insurance premiums, the BMIF will, following attempts to secure payment of the premium, refer the barrister to the BSBs Complaints Team. Self-employed barristers, whether or not they have paid their renewal premiums, are covered by the BMIF (because of its mutual basis). Therefore, there is not a serious risk to the public if self-employed barristers are not up to date with payment of their insurance premiums. It is nonetheless important that self-employed barristers continue to pay their insurance premiums to the BMIF when due, and that the BSB has its own mechanism in place to monitor compliance with this requirement. Additionally, it is important that employed barristers who are offering legal services to members of the public have satisfied themselves that they are covered by their employers professional indemnity insurance. The BSB is therefore of the view that its current arrangement of awaiting reports from BMIF of non-compliance with the requirements is no longer appropriate. The BSB should require individuals, when renewing their authorisation to practise, to declare on an annual basis that they have adequate professional indemnity insurance in place and to undertake to pay the associated premiums when due. Continuing Professional Development (CPD) The CPD year for both employed and self-employed barristers is a calendar year; however, practitioners have until 31 January to submit a completed CPD record card which details the CPD that they have undertaken. Practitioners can apply for an extension of time to complete the required CPD and/or a waiver of the CPD requirements. Those who have not submitted evidence of compliance with the CPD requirements or been granted extensions of time to complete the requirements or a waiver are referred to the Complaints Team (see paragraph 35 for the further action taken by the Complaints Team). Under the current arrangements, neither compliance with the annual CPD requirement nor provision of an annual CPD record card are prerequisites for obtaining a practising certificate. The BSB has concluded that there should be a link between monitoring compliance with the CPD requirement and renewal of barristers authorisation to practise. Ongoing completion of CPD is an important way for practising barristers to keep their knowledge and skills up to date and to maintain the publics confidence and trust in the profession. It is a matter of serious concern that some barristers fail to comply with the CPD requirements. The BSB hopes that linking the monitoring of CPD and authorisation to practise will emphasise the importance to the profession of complying with the CPD requirements, and also give confidence to those who use barristers services. Chambers Return and individual responsibility The Chambers Return is an annual process that is used to ensure the accuracy of data held by the Bar Councils Records Office on practising barristers. In the autumn of each year, the Records Office sends a form to all Chambers, sole-practitioners and employed barristers to verify the information held in relation to both the chambers and individual members. Although there is an ongoing responsibility under the Code for individual practitioners to keep the Records Office informed of their current practice address, it is not obligatory for Chambers or individuals to complete the Chambers Return and there is no connection between completion of the Chambers Return and barristers responsibility to renew their practising certificates. Summary of proposed changes As explained above, compliance with the various practising requirements is monitored by separate mechanisms at different times throughout the year. This presents a risk to users of legal services in that they have no means to check whether the barrister they instruct has complied with all the necessary practising requirements. It also creates an excessively burdensome process for members of the Bar. It is important that members of the public are able to look up barristers on the Register and feel confident that those barristers are currently permitted to practise by their regulator. The BSB must be able to demonstrate that it is operating an authorisation to practise regime that commands the confidence of the profession, users of legal services and the Legal Services Board. Practising certificates should not just indicate payment of an annual fee but should be confirmation that barristers are permitted to provide legal services as barristers because they have complied with the basic practising requirements in the Code. Therefore, the BSB proposes to shift towards a more explicit and robust regime that grants barristers authorisation to practise and provides for clear, effective and streamlined administration for barristers and the BSB. The BSB believes that the proposals described below will increase the confidence of those who use barristers services, make it easier and more straightforward for barristers to comply with the requirements, and produce a more professional approach to authorisation to practise that will benefit members of the public and of the profession. Proposal 1 annual renewal of authorisation to practise In order to renew their authorisation to practise, self-employed and employed barristers will be required to complete a brief annual renewal form. The form will include: Verification of current contact details and other information held by the Records Office; Verification of status and entitlement to exercise specified reserved legal activities, along with any additional disclosures that might be required to support implementation of the Act; A declaration of the number of CPD hours completed in the previous calendar year (see Proposal 2 for more details about CPD); A declaration of having obtained and paid for professional indemnity insurance and an undertaking to continue to do so whilst they are authorised to practise, or confirmation that an employer has suitable insurance in the case of employed barristers who supply legal services to the public; and A declaration of truth for signature. Renewing authorisation to practise will both authorise barristers to undertake some reserved legal activities (depending on whether they are employed or self-employed and what rights they have) and permit barristers to undertake non-reserved legal activities pursuant to the Code. The facility to complete the authorisation renewal form and to pay the annual authorisation fee will be available on the BSBs website. This will make it easier for practitioners to renew their authorisation to practise and reduce the administrative burden (and therefore the cost) of the BSBs internal processes. Information submitted on the online renewal form will then update both the BSBs records and from there, relevant data will update the Register. The timescale for renewing authorisations will be the same for employed and self-employed barristers, for example 31 January. The BSB is considering allowing a grace period of one month during which the previous authorisation would remain valid. This would avoid the problem that would otherwise arise if a barrister were a few days late in renewing their authorisation and therefore not able to exercise a reserved legal activity without committing a criminal offence. On the other hand, it is arguable that barristers should take personal responsibility for renewing on time and no grace period should be permitted. Advance warning notices will be sent to barristers and their chambers or employer making it clear that anyone who does not renew their authorisation to practise risks being removed from the Register and will be committing a criminal offence if they undertake a reserved legal activity without being authorised to do so. Barristers who do not return a completed renewal form with the requisite fee by the renewal date will automatically incur a late-payment surcharge. Such surcharges are imposed under the current system for late payment. Barristers who receive a late-payment surcharge would not be able to renew their authorisation until such time as the practising certificate fee and surcharges are paid. Barristers who do not return a completed renewal form with the requisite fee within one month of the renewal date will be removed from the Barristers Register and their authorisation to practise as barristers will expire. Barristers, along with their Heads of Chambers and Practice Managers or employer, will be informed that from the end of the grace period they will be removed from the Register and are not authorised to practise until they have complied with the requirements. The BSB may undertake some spot checks by contacting Chambers or employers to ensure that the individual is not practising without authorisation. If an individual is found to be practising when not authorised, it may lead to criminal and/or disciplinary proceedings. Currently, a breach of the practising provisions of the Code will normally only render the barrister concerned liable to a written warning or a fixed financial penalty, unless it is considered to be a serious failure. The BSB considers that this is not an adequate reflection of the seriousness of the offence. The requirement that a person may only exercise reserved legal activities if they have been authorised is a legal requirement under the Act and is also a fundamental safeguard for users of legal services. The BSB has therefore concluded that any breach of its authorisation rules should generally constitute professional misconduct. The BSB will put in place a mechanism for those whose authorisation expires and are removed from the Register that allows them to be restored to the Register quickly once they have demonstrated their compliance with the authorisation requirements. However, it will not be possible to backdate authorisation unless it can be shown that the BSB made an error in failing to authorise a barrister. Because the BSB will ensure that adequate reminders and warnings are sent prior to removal, and that barristers who are removed from the Register could be restored quickly after they have complied with the requirements, the BSB is minded to not develop an appeal mechanism against removal from the Register. It is important to repeat that under s14 of the Act, it is a criminal offence to carry out a reserved legal activity when not entitled to do so. Therefore, barristers who continue to practise without renewing their authorisation may not only be committing a disciplinary offence, but may also be committing a criminal offence. Q.1 Do you agree with the arrangements described in Proposal 1? Do you have any suggested alternatives and/or improvements to the proposal? Q.2 Do you think it is reasonable for barristers who do not comply with the authorisation requirements in a timely manner to no longer be authorised to practise (and therefore be removed from the Barristers Register)? Q.3 Do you agree that it is unnecessary to have an appeal mechanism against the decision not to renew an individuals authorisation to practise if they do not comply with the requirements? Q.4 Is it appropriate to have a one month grace period? Proposal 2 monitoring CPD compliance At present, completion of the annual CPD requirement is a practising requirement under the Code; however, compliance with this requirement is not a prerequisite to obtaining a practising certificate. The BSB will be undertaking a comprehensive review of the substantive requirements for CPD and the arrangements for enforcing them during 2010. This paper considers only whether failure to comply with the new requirements should result in automatic loss of eligibility for authorisation and at the information to be included in the Register. All other aspects of the CPD requirements will be considered in the CPD review and the outcome of that review will be taken into account in the final decisions on the issues raised in this paper The BSB has carefully considered whether completion of the required CPD should be a prerequisite to being granted authorisation to practise under the proposed new arrangements. Bearing in mind that it will be a criminal offence to undertake a reserved legal activity without being authorised to do so, the BSB has concluded that it is disproportionate and not in the interests of the public for failure to comply with the CPD requirement to lead to barristers being declined authorisation. Whilst non-compliance with the CPD requirements would not lead to automatic loss of authorisation to practise, the BSB takes such non-compliance seriously. It is in the public interest for barristers to keep their knowledge and skills up to date and CPD plays a fundamental part in that process. Non-compliance with the requirements would therefore continue to result in disciplinary action by the BSB. However, the BSB believes that enforcing CPD compliance by withholding authorisation to practise has the potential to seriously prejudice barristers clients and therefore would not promote the regulatory objectives of the Act. The risk to the public would be that a barrister who has not completed all or part of the required CPD hours would lose their authorisation to practise and would therefore not legally be able to exercise a reserved legal activity. A shortfall in the amount of CPD completed cannot be rectified immediately. The implications for barristers clients would be that they might lose their legal representation during a trial or at such a point in their case that they would be severely prejudiced and disadvantaged by their loss of counsel. The BSB has concluded that compliance with the CPD requirements being a prerequisite to renewal of authorisation would not be in the interest of the public. Nevertheless, the BSB is concerned by the number of barristers who fail to complete the required CPD each year (see footnote 12). In order to reinforce the importance of compliance with the CPD requirements, barristers should be required to declare on their authorisation renewal form the number of CPD hours they have completed during the previous calendar year. Barristers will be required to make this declaration in order to renew their authorisation. Although not a ground for refusing to grant authorisation, completion of the requisite number of CPD hours will continue to be mandatory under the Code. Barristers who, for some good reason, are not able to complete the required amount of CPD will be allowed to apply for an extension of time to comply with the requirements or a waiver from the CPD requirements. Such applications should normally be made before the year end and will only be granted exceptionally. Barristers who have not completed their CPD or obtained a waiver or an extension of time, or who fail to comply with any condition on which an extension is granted, could ultimately face a complaint of professional misconduct for failure to comply with the CPD requirement. A further option to encourage compliance with the CPD requirement would be to note on an individuals Register entry that they are not fully compliant with the ongoing CPD requirements. This would provide an incentive to barristers to ensure that they have complied with the CPD requirements and would inform the public but without the risk to users of legal services that their legal representative would lose their authorisation to practise. Q.5 Do you agree with the arrangements described in Proposal 2? Do you have any suggested alternatives and/or improvements to the proposal? Q.6 Do you think that Proposal 2 provides adequate regulatory safeguards for users of legal services? Q.7 Do you think that non-compliance with the CPD requirements should result in automatic refusal of renewal of authorisation to practise? Q.8 Do you think that noting on a barristers individual entry on the Register that compliance with the CPD requirements is outstanding would provide an incentive to comply in a timely manner? Delegation of renewal applications A further issue under consideration is whether the authorisation to practise renewal form can be completed by someone other than the individual barrister concerned. For example, the BSB is considering whether the new arrangements should allow for a barristers practice manager, clerk, Head of Chambers, or employer to complete, sign and return the renewal form on behalf of members or employees. The BSB does not want its processes to put a heavy administrative burden on individual practitioners or chambers. It is likely that some chambers or employers would prefer to have one individual responsible for arranging the renewal of authorisations for all members or employees. However, it is important to ensure that the new arrangements are robust and that an individual barrister can be held accountable if there is any false or misleading information on an annual renewal form. Therefore, allowing another individual to complete and return the renewal form would detract from the individual responsibility that practising barristers have for ensuring compliance with the practising requirements. The BSB is not minded, in the initial stages at least, to allow barristers to delegate authority to another individual for completing and endorsing the renewal form. If returning on paper, this would not prevent other individuals from collating and submitting multiple completed and signed renewal forms. The Chambers Return (see paragraph 49 above) will need to continue in some form in order to collect information for Chambers monitoring purposes. Q.9 Do you foresee any problems in the proposals for the administration of barristers practice? Will they present difficulties for chambers or employers? If yes, how could any problems or difficulties be resolved? Impact on pupils and newly qualified barristers If these proposals (or a variation on these proposals) are adopted there will be a limited impact on pupils and those who are commencing practice for the first time. In previous years, those undertaking their practising period of pupillage, and those who had commenced practice following pupillage were not granted practising certificates. In the light of commencement of relevant parts of the Act in January 2010, the BSB has implemented short-term changes so that second-six pupils are issued practising certificates. All pupils, pupil supervisors, and newly qualified barristers who were affected by the changes have been informed. The question of how pupillage is signed off and what systems are in place to authorise second-six pupils and those who have completed pupillage will to some extent be informed by the ongoing Pupillage Review. Timing The BSB hopes to introduce a full authorisation scheme towards the end of 2011 so that it is in place for renewals at the start of 2012. Consideration will be given to transitional arrangements and these are likely to include the extension of the Practising Certificate year for self-employed barristers and the shortening of the Practising Certificate year for employed barristers for the 2011 year this will be in order to bring the authorisation period for all barristers into line. An appropriate adjustment to practising certificate fees will be made. Part IV Barristers without full entitlements to practise Background There are a number of different types of barristers who, for historic reasons, have different or limited entitlements to provide legal services. For the purpose of the remainder of this paper, any reference to a permission to practise refers to the right to undertake non-reserved legal activities whilst using the title barrister. Any reference to authorisation refers to the right to undertake reserved legal activities. Entitlement is a broad term that is used to refer to both permissions and authorisations. It is important that the regulatory requirements are easy for both the public and the profession to understand and that barristers entitlements are clear and accessible. As explained in Part I, the Act identifies at s12(1) six types of reserved legal activities: the exercise of a right of audience the conduct of litigation reserved instrument activities probate activities notarial activities, and the administration of oaths. S13 (2) of the Act states that a person is able to carry out a reserved legal activity if they have been authorised to do so. S14(1) makes it a criminal offence, punishable by imprisonment for up to 2 years or a fine or both, to carry out a reserved legal activity without being authorised to do so. Under the Act, the Bar Council (as an approved regulator) can authorise individuals to undertake all reserved activities except notarial activities. Schedule 5, s4(2)(a) of the Act sets out the rights of barristers during the transitional period. According to the Act, barristers who hold practising certificates are deemed to be authorised to undertake all reserved legal activities, with the exception of the conduct of litigation and notarial activities. Additionally, pursuant to paragraph 504 of the Code, employed barristers are authorised to conduct litigation if they comply with the Employed Barristers (Conduct of Litigation) Rules at Annex I to the Code. During the transitional period, some barristers are authorised to exercise all rights of audience (by the Act, by virtue of holding practising certificates), but the Code does not permit them to exercise those rights, for example because they have not complied with the three year rule. Similarly all employed barristers are authorised to conduct litigation but the Code does not permit them to do so as they have not complied with the rules relating to working with a qualified person. This means that any exercise of these rights would be legal, but constitute professional misconduct. For simplicity, in the following paragraphs we refer to barristers as simply being entitled to carry out certain activities (ie, they are both authorised and permitted), or not. Categories of barristers entitled to exercise rights of audience As mentioned above, there are a number of different categories of barristers who are permitted to practise but with differing entitlements. Some of these have evolved over the years as a result of transitional provisions in the Code. The table below describes different categories of barristers, their permissions and authorisations, the relevant Code provisions, and the approximate number in each category. DescriptionCode paragraphApproximate number1Self employed barristers who hold practising certificates are entitled to exercise a right of audience before every court in relation to all proceedings. Not authorised to conduct litigation.203.1 401(b)(ii)12,0002 Employed barristers who hold practising certificates are all authorised to conduct litigation but are only entitled to exercise varying rights of audience as set out below.504 Annex I 3,000 Employed barristers who are entitled to exercise a right of audience before every court in relation to all proceedings (because they have completed pupillage and have either satisfied the three year rule or work with a qualified person, or these requirements have been waived). 203.1 1,800 Employed barristers who can provide legal services only to their employer and who are entitled to exercise a right of audience in lower courts only (because they were entitled to do so on 31 July 2000).1103500Employed barristers who are providing legal services to their employer only and are not entitled to exercise a right of audience because either: they were called before 1 January 2002, did not complete pupillage and either have not notified the Bar Council of a wish to exercise a right of audience or have not completed required additional training requirements, or they have not satisfied the three year rule and do not work with a qualified person. 1102 203.1  375Employed barristers whose entitlement to exercise rights of audience is not known because they have failed to provide information about whether they have completed pupillage or have satisfied the three-year rule.300 3 Barristers registered under paragraph 206 or 808. This category is explained in more detail in paragraphs  REF _Ref249083652 \r \h  \* MERGEFORMAT 110 -  REF _Ref249083659 \r \h  \* MERGEFORMAT 112. They are not authorised to undertake any reserved legal activities. They are permitted to undertake non-reserved legal activities if they comply with conditions to ensure that the public understands their status.206 and 808100 The BSB has reviewed these arrangements and concluded that it is only necessary to make minor changes to some of the categories with restricted rights, subject to making it easier to find out what rights an individual barrister has. It is in the interests of the public, consumers and the administration of justice that barristers (whether employed or self-employed) who provide legal services to the public are entitled to exercise a right of audience before every court in relation to all proceedings provided that they have complied with all the training requirements and comply with the Code. Certain employed barristers who have not met all the current requirements are entitled to continue to exercise the rights they had before more stringent requirements were introduced (ie those in categories 2(b) and 2(c)(i) above). It is important to note that barristers who provide legal services only to their employer pose a significantly lower risk to the public and consumers. As practising barristers, they are subject to the Code rules. Continuing to allow individuals to practise as employed barristers providing legal services to their employer only without having full rights of audience will, in the BSBs view, promote the regulatory objectives of encouraging a diverse legal profession and promoting competition. The BSB therefore does not see any need to make any changes to categories 2(b) or 2(c) in the table above, except in one minor respect. The BSB is not aware of any evidence of detriment to the public as a result of barristers in these categories being allowed to continue to practise in this way and it would therefore be disproportionate to change their authorisations or permissions. However, it considers that the provision in rule 1102 which allows a barrister called before 1 January 2002 to notify the Bar Council of a wish to exercise a right of audience should not be open-ended. This was always intended to be a transitional arrangement for the benefit of those with existing rights and the BSB proposes that it should come to an end on 31 December 2011. Barristers called before January 2002 would then be in the same position as barristers called more recently. It would still be open to them to seek a waiver of the relevant rules. Rights of audience already granted under this provision would remain valid. The BSB is planning in due course to review the three year rule which provides that barristers of less than three years standing may only exercise a right of audience if they work in a place where a qualified person is readily available to provide guidance to them. In the meantime, this paper assumes that the rule will continue in force in its present form. Q 10 Do you agree that the transitional arrangement under rule 1102 should be brought to an end? Q 11 Do you agree that no other changes need to be made to the rights of employed barristers in categories 2(b) and (c) above? Proposed change 1 Category 2(d) in the above table does pose a regulatory risk. Attempts have been made to obtain the necessary information to ascertain these individuals practising entitlements; however, there is currently nothing in the Code to enable practising certificates to be withheld if individuals fail to provide this information. They are therefore entitled to renew their practising certificate annually without providing the information necessary to ascertain whether they should be authorised to exercise a right of audience. The BSB must, as the professional regulator, be clear about what reserved legal activities each practising barrister is entitled to undertake, and the failure of some barristers to provide necessary information is a concern. The BSB has concluded that it will require as part of the proposed authorisation process (as described in Part III of this paper) confirmation of an individuals entitlement to exercise reserved legal activities. If an individual has previously obtained a practising certificate but has not provided the necessary information to allow the BSB to determine their appropriate level of authorisation, it will be assumed that they fall into category 2(c) in the table and that they are not entitled to be authorised to exercise a right of audience. Q.12 Do you agree that if individuals have not provided the necessary information to allow the BSB to determine their level of authorisation, it should be assumed that they are not authorised to exercise a right of audience? If not, please explain why. Proposed change 2 It is important that it is very clear to the public, consumers, employers, and practitioners what reserved legal activities barristers are entitled to undertake. The current situation could be improved by listing barristers authorisations and permissions on their practising certificates when they obtain or renew their authorisation or permission to practise. This information should be publicly available in a clear and accessible format and therefore should be listed on the Register. Q.13 Do you agree that barristers authorisations and permissions should be listed on practising certificates and on the Barristers Register? If not, please explain why. Rights to conduct litigation Under the LSA transitional arrangements, all employed barristers are authorised to conduct litigation but the Code rules provide that they may do so only if they have spent at least 12 weeks working under the supervision of qualified person and, if they are of less than one years standing, their principal place of practice is an office of a qualified person who can provide guidance. The one year period is extended to 3 years for barristers supplying litigation services to the public, and the calculation of number of years standing includes only years when they have been entitled to conduct litigation. Many employed barristers are not able to meet these requirements are therefore not permitted to conduct litigation. It is important for barristers themselves, and for their employers and their clients, to be clear about whether or not they are permitted to conduct litigation. The BSB proposes to move to a regime whereby only those who meet the requirements for conducting litigation are authorised to do so. Q.14 Do you agree that employed barristers should only be authorised to conduct litigation if they comply with all the requirements for doing so? Other reserved legal activities This paper has so far concentrated on rights of audience and the right to conduct litigation but, as explained above, under the Act the BSB is also an Approved Regulator for reserved instrument activities, probate activities and the administration of oaths. Under the transitional regime, all barristers who have practising certificates are entitled to exercise such rights, but in the future the BSB will need specifically to authorise these activities. The BSB has little information about the extent to which barristers currently provide such services. The question is whether in future the BSB should authorise barristers to exercise such rights on an individual basis or whether to continue the present practice of allowing all barristers who are permitted to practice to exercise these rights. As no problems have been identified with the present arrangements, the BSB is inclined to continue the present practice. A similar question arises in relation to rights to provide immigration advice and immigration services. These are not defined as reserved legal services but under the Immigration and Asylum Act 1999, only qualified persons may provide these services. Before the Legal Services Act, all barristers holding practising certificates were deemed to be qualified persons and the transitional arrangements under the Act preserve that position. But in the longer term, the BSB will have specifically to authorise barristers to provide immigration advice and services. Again the question is whether the BSB should continue to authorise all barristers permitted to practise to provide such services or whether authorisations should be granted on an individual basis. As for reserved legal activities, the BSB is inclined to continue the present practice. The Register will need to identify which rights each barrister can exercise. The BSB will also need to consider whether there are any risks to the public in providing other kinds of reserved legal services and/or immigration advice and services which would require it to consider making specific rules or guidance about these activities. Q.15 Do you agree that all barristers with practising certificates should be authorised to provide reserved instrument activities, probate activities and the administration of oaths? If not, what should be the basis for deciding which barristers should be authorised to carry out those activities? Q.16 Do you agree that all barristers with practising certificates should be authorised to provide immigration advice and services? If not, what should be the basis for deciding which barristers should be authorised to carry out those activities? Q.17 Do you think additional rules are needed to regulate these activities? Part V - Barristers not permitted to practise Background The term non-practising barrister has historically been used to refer to individuals who have been called to the Bar of England and Wales, but do not hold a practising certificate, and are not deemed to be practising under the Code. The BSB believes the term non-practising barrister can be misleading because, as explained below, some of these individuals are in fact providing legal services. The BSB would therefore like to change the terminology to barristers not permitted to practise. According to the Bar Councils Records Office, there are over 20,000 barristers who are not permitted to practise. The term applies to many individuals in varied circumstances, including: Those who are eligible to obtain a practising certificate and practise as barristers, but choose not to, for example because they have pursued a different career or they have retired; Those who are not allowed to practise as barristers because they do not have a practising certificates, either because they are not eligible for one (because they have not completed pupillage), or because they have not applied for one but are nonetheless legitimately offering non-reserved legal services to an employer or to the public; Those who are not eligible to obtain practising certificates (because they have not completed pupillage or complied with the three-year rule) but are not offering legal services. This consultation is concerned only with barristers who do not havepractising certificates but who do provide certain legal services (ie those in category (ii) above). The regulation of this group of barristers by the Bar Council and BSB has a long and chequered history (see Annex 2 for a summary). Despite a number of reviews of the nature and extent of regulation of this group over the course of the last decade, there continues to be a sense that we have not yet developed satisfactory arrangements. The root of the problem lies in the fact that the same title of barrister is used to describe those who have been called to the Bar on completion of the vocational stage of training, and also those who, following pupillage, are entitle to practise as such. The general rule is that barristers who are not permitted to practise are not entitled to hold themselves out as barristers (or allow themselves to be held out as barristers) in connection with the supply of legal services. Therefore, barristers who are not permitted to practise are entitled to supply some legal services, but are not entitled to describe themselves as barristers in conjunction with the supply of legal services. This also applies to an offer to supply legal services, which has an impact on the way individuals may advertise. See Annex 3 for the relevant parts of the Code of Conduct. Additionally, pursuant to the Act, barristers who are not permitted to practise are not legally entitled to undertake any reserved legal activities, and to do so would be a criminal offence. Most barristers in this category have not completed pupillage and hence are less highly trained than practising barristers. They are also not subject to the rules in the Code that apply only to practising barristers. In particular they are not subject to the rules on not taking on work for which they are not competent, continuing professional development and client confidentiality. They are subject to the rule which prohibits all barristers from engaging in conduct which is dishonest or otherwise to discreditable to a barrister, is prejudicial to the administration of justice or which is likely to diminish public confidence in the legal profession or otherwise bring the legal profession into disrepute. The BSB can bring disciplinary proceedings against those who breach this rule. Barristers who are not permitted to practise can and do provide legal services to the public, including advice and representation before bodies that do not require rights of audience, such as Tribunals. They can also give legal advice to an employer. These are legal services which any person, without any qualifications, is allowed to provide. It would not be appropriate to prevent barristers with their legal qualification from supplying such services but, to avoid misleading the users of their services, they should not be allowed to call themselves barristers. This policy has been in force for some years but experience has shown that there are some problems with it. Concerns about non-practising barristers The continuing concern of the BSB is how to regulate those in category (ii) of paragraph 97 above individuals who have attained the status of barrister and offer legal services (particularly those who offer legal services to the public), but are not entitled to obtain a practising certificate because they have not completed pupillage. The primary concerns are: The risk of the public being misled as to an individuals status (and correspondingly, their knowledge, ability and competence to give legal advice). This is particularly a high risk in relation to immigration advice, where barristers who are not permitted to practise may be giving legal advice to individuals who are vulnerable and may not be fluent in English. The lack of clarity to the public, other professionals and the barristers themselves as to what these individuals are and are not entitled to do. The ability of barristers not permitted to practise as barristers nevertheless to provide legal services to the public but without being held to the standards set out in the Code, such as being competent, courteous and maintaining confidentiality. Additionally, requirements such as having professional indemnity insurance and completing annual CPD do not apply. The potential damage to the reputation of the profession and public confidence in it by allowing individuals who are not permitted to practise as barristers to describe themselves (or be known) as barristers. It is recognised that these concerns stem from the unique situation at the Bar where individuals are called to the Bar, and thus obtain the status of barrister, before they have completed the full training requirements that permit them to practise. This consultation paper does not re-open the debate on deferral of Call. Instead, it explores how a workable solution to these concerns can be developed. Evidence to support concerns The BSB has limited evidence about problems with barristers who are not permitted to practise; however, this evidence may not accurately reflect the extent of the problems. The primary source of information is the complaints made against individuals who use the title barrister when they are not permitted to. The information that the BSB holds on this type of complaint is not necessarily representative of what may be a wider problem members of the public must first know to question an individual's status, or to have received such a bad service that they contact the BSB in order to make a complaint. The BSB recognises that the numbers of known scenarios are relatively low, but it does not consider that they reflect the full extent of the potential detriment to the public. With this limitation in mind, the evidence that it does have is explained below. The Office of the Immigration Services Commissioner (OISC) wrote to the BSB in early 2009 to express concern about the way in which barristers who are not permitted to practise present their status to the public. It was particularly concerned about those who are regulated by the OISC to provide immigration advice but who hold themselves out as practising barristers or describe their business in terms which may be misleading, such as referring to their offices as chambers. In the 2008-2009 financial year, 3 out of the 14 complaints referred by the OISC to the BSB related to such issues, but none of the complaints were upheld because the Code was not sufficiently broad to cover these scenarios. In the first three quarters of 2009, the BSB opened 11 complaints where the primary aspect was about a barrister who was not permitted to practise using the title barrister. Seven of these complaints were made by external individuals, which could include members of the public or other professionals. Four of these complaints were internal and initiated by the BSB. In previous years, it has not been possible to obtain accurate reports of the number and nature of this type of complaint. Due to an upgrade in the complaints database in early 2009, the BSB is now able more accurately to report on the numbers, nature and outcomes of such complaints. The BSBs Consumer Panel expressed concern about the current arrangements for barristers who are not permitted to practise, as they are not clear to the public. The Panel wrote in its response to the BSBs second consultation paper as part of the review of the Code of Conduct: The Panel, however, is concerned that people could legitimately call themselves a barrister without signing up to the Code (and be subject to its discipline). Consumer and public expectation is that a barrister any barrister brings certain guarantees of integrity and honesty to their work, and thus that anyone who holds themselves out as a barrister should have to live up to those expectations. Whilst those who operate the Bar Councils ethics helpline do not keep statistics of the calls they receive, they have confirmed that they regularly receive calls from barristers who are unsure of what they are entitled to do and how they can describe themselves. This demonstrates a need for clarity as to what individuals are entitled to do and in what circumstances. Barristers registered under paragraphs 206 and 808 of the Code In addition to the concerns about barristers who are not permitted to practise generally, there is a very small category of barristers who do not hold practising certificates, but are permitted to describe themselves as barristers whilst supplying legal services. In order to do so, they must comply with the conditions detailed in paragraph 206.1, 206.2 or 808.4 of the Code. The conditions include registering with the BSB, providing current contact details to the Records Office, having professional indemnity insurance in place, and before supplying legal services to any person or employer, providing a 'health warning' regarding their status. The health warning must be provided in writing and explain the barristers status, that they do not hold a practising certificate, the limitations of the legal services that they can provide (eg not entitled to exercise any reserved legal activities), that they are not fully regulated by the BSB, and that compensation cannot be awarded to the client regarding any poor service. Barristers are entitled to register under this category if they were called before 31 July 2000, or if they are practising outside England and Wales giving advice on English law, or if they are practising as a member of another authorised body. At present, there are just over 100 individuals who are registered with the BSB under this category. The OISC has raised specific concerns about these provisions of the Code because it is unclear whether the individuals need to be registered with the OISC in order to provide immigration advice. The Courts have clarified the position, but the OISC has asked the BSB to review and clarify the provision. However, the entry into force of the Legal Services Act has superseded this request: under the LSA, during the transitional period it is clear that only barristers holding practising certificates are entitled to provide immigration advice, absent express authorisation. In early 2009 the BSB sent a survey to those barristers registered under these provisions in an attempt to learn more about what they do. At present, those who register under these provisions do not need to renew their registration annually and therefore some of the information held was out of date. A little less than half of those registered responded to the survey. It was clear from the responses that there was some confusion or misunderstanding about the purpose of the Code provisions and the requirements that one must satisfy in order to comply. For example, about a third of those who responded said that they did not describe themselves as barristers in connection with the supply of legal services, but had registered in order to preserve their position. Solutions considered As shown by the history of the regulation of barristers who are not permitted to practise at Annex 2, both the Bar Council and the BSB have considered and implemented a number of solutions over the years. This history has been taken into account when considering new proposals. The general principles which the BSB considers should be followed in deciding how to regulate barristers who are not permitted to practise are as follows: All barristers should be expected to act with integrity and not reduce public confidence in the profession. Clients who use the services of those who hold themselves out as barristers should be able to rely on the quality of the services supplied and the protection of regulation. Potential clients should be able readily to find out whether a person they are considering instructing is permitted to practise as a barrister and should understand the differing level of protection available if they choose to use someone else. Potential clients should not be misled about the qualifications and status of the barristers with whom they deal. Barristers who are not permitted to practise should be allowed to provide non-reserved legal services subject to effective safeguards to protect the interests of their clients. Regulation should be clear and easy to understand and any restrictions should be proportionate to the risks involved. The challenge is to find a way of achieving the most appropriate balance between these principles and the BSB has considered a variety of options. At one extreme is the option to prohibit barristers who are not permitted to practise from providing legal services at all, and therefore require those who wish to provide legal services to disbar. This would be an excessively heavy-handed way to address the BSBs concerns and it would penalise those who have complied with the regulatory requirements over the years. Additionally, it would require individuals to abandon a title that they have legitimately earned. Another option is to do nothing and leave the current arrangements as they are. This is not an adequate response to the BSBs concerns and it would not resolve other practical regulatory problems with the current arrangements: It can be difficult to enforce the current provisions where there might be a significant regulatory risk. Unless an individual describes himself as a barrister in writing (for example on letterhead or on a business card), it can be difficult to prove that the individual held himself out as a barrister and therefore the BSBs ability to pursue disciplinary action, even in serious cases, can be limited. The regulatory risk does not simply come from the individual holding himself out as a barrister, but from the client knowing that he is a barrister for example, if a mutual acquaintance refers the client to a barrister who is not permitted to practise and the client assumes that the barrister is entitled to practise as such. Non-practising barristers are entitled to use a number of other terms to describe themselves other than barrister it is acceptable under the Code for individuals to describe themselves as a lawyer, legal advisor, or a legal consultant. However, a problem arises when a client asks, Are you a barrister or a solicitor? or, What are your qualifications? This places even the cautious individual in the position of having to dodge the question, lie to the client, or tell the truth but then have to stop providing legal services to the client in order to prevent a breach of the Code. On the other hand, in the case of non-practising barristers who are in employment, the current arrangements may be wider in scope than is necessary to achieve the regulatory objectives. Under one reading of the Code, a barrister could be considered to breach the Code if he described himself as a barrister to an employer in connection with the supply of legal services. This is a disproportionate restriction, as the regulatory risk is very small of an employer knowing that an employee is a barrister when, for example, the employee helps draft contracts for the employer. The previous non-practising barrister position in force in the 1990s was also considered. Under those arrangements, barristers who were not entitled to practise as a barrister but provided legal services had to qualify the use of the title barrister with non-practising. This was discounted for the reasons set out in paragraph 3 in Annex 2; principally that the title barrister (non-practising) was misleading and did not sufficiently explain the barristers status. Consideration was also given to creating a two-tier system of permissions. This could require all barristers who are not permitted to practise but who offer legal services to be brought within the regulatory reach of the BSB. They would be required to obtain an annual permission to provide legal services (but not to authorise them to undertake reserved legal activities), and be subject to certain key requirements in the Code, such as completing CPD, having professional indemnity insurance, and the requirement to maintain client confidentiality. In return they might be allowed to use a title including the word barrister, such as barrister who is not permitted to practise or unauthorised barrister. Individuals who did not register under the second tier would not be permitted to supply legal services at all. The benefit of this approach is that it would increase the regulation of barristers who provide legal services but are not permitted to practise. The draw-backs include potential confusion to consumers about the different tiers of barristers. It would allow barristers who have not completed the full training requirements (ie, pupillage or the three-year rule) to supply legal services and represent clients as barristers. This has the potential to create a greater risk to the public and to consumers of legal services in that it allows individuals who are not fully qualified to use the title barrister. It would also not prevent the public from being misled by those who hold themselves out as barristers when they are not permitted to do so. Whilst the BSB considered this option, it concluded that it would not resolve the current problems, whilst possibly creating a new set of risks to the public. Proposed solutions Having considered a number of options, the BSB has developed a set of proposals for three discrete types of barristers who provide legal services but are not permitted to practise: Those who supply legal services to the public and are not in a regulated firm; Those who are employed by a legal services firm that is regulated by another approved regulator and supply legal services to clients of their employer; and Those who supply legal services to their employer only. Those who supply legal services to the public The BSB believes that the current situation in which barristers who are not permitted to practise may provide legal services (other than reserved legal activities) to the public, subject to not describing themselves as barristers, should be maintained but with some additional safeguards. First, the BSB proposes to provide additional guidance (to complement the general professional rule on holding out) on what constitutes holding out, and relevant individuals will be required to have regard to the guidance. This will make it clearer what terms or titles barristers who are not permitted to practise may or may not use in describing themselves in promotional material, websites and reference books. Second, in order to protect clients who know that the person supplying legal services is a barrister, the BSB proposes to impose a new requirement. Where an individual has reason to believe his client knows he is a barrister (notwithstanding that he has not directly held himself out as a barrister), he must get his client to sign a written disclaimer that clarifies that he is not permitted to practise as a barrister. The disclaimer could include the following points: He may not be trained to the same level as an authorised barrister; He is not required to be insured; He does not have the right to undertake reserved legal activities; He is not bound by the same standards of conduct as authorised barristers; and There is no body that can consider a complaint of poor service against barristers who are not authorised. The purpose of the disclaimer is to ensure that clients who are aware that an individual was called to the Bar are fully informed of that individuals status and the potential limitations on their experience, practising rights, and their level of regulation. The disclaimer will be in a prescribed form, the terms of the disclaimer will be strict, and the requirement to require all clients to sign it is deliberately onerous. The general prohibition on using the title of barrister will still apply, although there will be an exception for getting a signed copy of the disclaimer which will not, of itself, count as holding out. If an individual does use the title barrister, or has reason to believe that the client knows he is a barrister, and does not obtain a signed disclaimer, the BSB will take disciplinary action. The BSB has considered whether the disclaimer should be required to be given in all cases rather than just when an individual has reason to believe that the client knows that they are a barrister. Whilst at first sight this would seem to be a sensible approach and in the public interest, on closer analysis, the BSB was concerned that such a requirement would undermine the prohibition on holding out. It might in effect allow barristers not allowed to practise as such to use the title of barrister in all their dealings with clients provided that they obtained disclaimers. That would be contrary to the intention of the BSBs proposals but the BSB would welcome views on whether this is right both as a matter of principle and in public interest terms. As an additional safeguard, if a client complains that he knew or was led to believe before instructing the individual that he was a barrister, then the onus will be on the barrister to show either that he did not have any reason to believe that the client knew his status or that he explained his status and obtained a disclaimer. Third, it is important that anyone considering using the services of a barrister should be able to check their credentials. The BSB will be encouraging use of the Barristers Register for this purpose. At present, the Register only includes information about barristers who are permitted to practise. The Register will incorporate guidance and explanatory material about barristers who are not permitted to practise and what it means if an individual is not on the Register. Fourth, the BSB has considered whether barristers who are not permitted to practise should be made subject to additional requirements in the Code. One option would be that all the core duties should apply to all barristers but that the more detailed rules would not apply to barristers who are not permitted to practise. The argument against this view is that it will reduce the distinction between barristers who are and are not permitted to practise and therefore cause more confusion. It will also impose additional regulatory burdens on non-practising barristers. The BSBs preliminary view is that only the core duty relating to maintaining public confidence in the profession should apply to non-practising barristers. It is important to note that there will continue to be a deeming provision in the Code so that if a barrister who is not permitted to practise is nonetheless holding himself out as a barrister while supplying legal services (without obtaining the prescribed disclaimer), disciplinary action can be taken for breaches of the Code provisions that apply specifically to practising barristers. Q.18 Is clearer guidance on holding out and requiring a client or potential client to sign a disclaimer in a prescribed form an adequate safeguard to ensure that members of the public are properly informed of the status of barristers who are not permitted to practise? Q.19 If you disagree, please explain why and suggest alternative proposals to protect the public in these circumstances. Q.20 Do you agree that the disclaimer should be given only when an individual has reason to believe that the client knows that they are a barrister? If not, please explain why Q.21 If you consider that the disclaimer should be given in all cases when a barrister without practising rights provides legal services to the public, is there a risk that this would undermine the prohibition on holding out as a barrister and if so how could this risk be mitigated? Non-practising barristers who are registered under paragraph 206 or 808 of the Code are presently required to provide a more limited version of the disclaimer to clients or potential clients if they wish to use the title barrister (see paragraph 109). For the reasons explained above, there are a number of problems with the arrangements for this category. The BSB therefore proposes the following changes: The category should be closed to new entrants anyone who was called before July 2000 would need to register with the BSB by 31 December 2011 in order to be included in the category. This would preserve the position of the small number of individuals who are currently registered under these provisions, but prevent an unlimited continuation of the category. In order to ensure consistency and clarity to the public, the required disclaimer would be brought into line with that which it is proposed barristers who are not permitted to practise must provide. Individuals registered under this category will be required to submit an annual return confirming contact details and other appropriate information in order to continue to be registered. Q.22 Do you agree with the above proposals for revised arrangements for barristers registered under paragraph 206 or 808 of the Code? If not, why not and what alternative proposals would you suggest? Those who are employed by a firm that is regulated by another approved regulator Whilst the BSB does not have any statistics, it believes that there are a number of non-practising barristers who are working in bodies that are regulated by other approved regulators - for example, in firms of solicitors. These individuals could be working as paralegals or legal advisors, and might be giving legal advice to clients of their employer or representing them before bodies for which rights of audience are not required. Their numbers are likely to increase as the number of pupillages continues to decline. Whilst such barristers might be supplying legal services to members of the public, there is less of a regulatory risk in this area. If a body is authorised by another approved regulator, then its employees are regulated persons under the Act and have a duty to comply with the relevant regulatory arrangements. Any complaint against the individual within the firm could be considered by the Office for Legal Complaints (if it is a complaint of poor service) or by the approved regulator (as they have jurisdiction over employees of the body). Therefore, if a client receives a poor service from a barrister without permission to practise in this scenario, the client will have remedies. Additionally, the BSB will then consider a finding made by another approved regulator and pursue its own disciplinary action if appropriate. For these reasons, the BSB considers this situation to present a relatively low-risk for members of the public and therefore it is not necessary to impose the same requirements as apply to those who are providing legal services direct to the public they will be covered by the firm's professional indemnity insurance, will have to comply with any requirements imposed by the firm's regulator, and clients will have a body that they can make a complaint to. These individuals should still be prohibited from describing themselves as barristers in connection with the supply of legal services. However, if they are asked or if it becomes known that the individual is a barrister, they should be under an obligation to explain their status and that whilst they were Called to the Bar, they are not permitted to practise as a barrister. The BSB will develop clear guidance to the profession as to what it is appropriate to say to a member of the public in such a situation. Q.23 Do you agree that the arrangements described in paragraph 137 are an adequate safeguard to the public? If not, please explain why and give alternative suggestions. Those who supply legal services to their employer only There is an important distinction to be made between those who supply legal services to the public and those who supply legal services to their employer only. The definition of legal services is drafted very widely (see Annex 3) and includes any legal advice, representation, and drafting or settling of any legal document. This could include an employee who, in the course of their employment, interprets legislation, drafts or advises on a contract, or drafts a witness statement. It would be disproportionate to prohibit individuals from informing their employer or potential employer that they are non-practising barristers. It is common practice to include this information on a CV or as part of a job application to show a level of academic achievement. Additionally, there is no significant risk to the public in a barrister, who is not permitted to practise, supplying legal services to an employer. It is the responsibility of the employer to manage the quality of work of an employee and to deal with any capability concerns within the context of the contract for employment. The BSB is therefore minded to adapt the Code to allow such individuals to describe themselves as a barrister who is not permitted to practise when describing their qualifications to their employer or potential employer, and then to be allowed to supply legal services to that employer only. Q.24 Do you agree that a barrister who are not permitted to practise should be allowed to describe themselves as a barrister who is not permitted to practise to their employer or potential employer only? Part VI Conclusions The BSB appreciates that this consultation paper covers a wide range of issues and that not all consultees will have an interest in every issue. Consultees are therefore welcome to comment on all or only some of the issues, or to provide comments on issues not specifically covered by the questions. Equality and diversity impact The BSB is committed to promoting equality and diversity throughout the Bar and within our own organisation. We endeavour to ensure that our processes and procedures are fair, objective, transparent and free from unlawful discrimination. We are also keen to identify ways in which access to and progression within the Bar can be widened such that everyone who has the ability to succeed is able to do so regardless of race, gender, disability, religion or belief, sexual orientation, age or socioeconomic background. In addition to the questions we have asked you to respond to, we would welcome contributions on any areas of the consultation paper which you consider might have implications for equality. For example, are any of the proposals likely to have a greater positive or negative effect on some groups compared to others? We would particularly welcome feedback on whether there are likely to be any negative consequences for any group arising from the proposed changes and how these could be mitigated, or if there are opportunities to promote greater equality and diversity in the areas mentioned above. Q25 Are any of the proposals likely to have a greater positive or negative effect on some groups compared to others? If so, how could this be mitigated? Timing of implementation After the consultation is closed, the responses will be considered and a set of final proposals developed. After the BSB has agreed the final proposals, work will commence on the development of draft amendments to the Code, detailed internal processes, and IT systems (including changes to the Barristers Register). Bearing in mind the need to make significant amendments to the Code, develop clear internal policies and procedures, develop the necessary IT system, and train staff, and obtain LSB approval for the changes it is expected the new processes will be put in place in during the course of 2011 so that the new authorisations arrangements can begin at the start of 2012. Educating the profession and the public The changes proposed in this paper will have a widespread effect on the profession. Once the arrangements have been finalised, the BSB will undertake a programme of education and publicity to give the new authorisation to practise and non-practising barrister regimes the widest possible coverage both within and outside of the profession. Annex 1 list of questions Q.1 Do you agree with the arrangements described in Proposal 1? Do you have any suggested alternatives and/or improvements to the proposal? Q.2 Do you think it is reasonable for barristers who do not comply with the practising requirements in a timely manner to no longer be authorised to practise (and therefore be removed from the Barristers Register)? Q.3 Do you agree that it is not necessary to have an appeal mechanism against withdrawing authorisation to practise and removal from the Register? Q.4 Is it appropriate to have a one month grace period? Q.5 Do you agree with the arrangements described in Proposal 2? Do you have any suggested alternatives and/or improvements to the proposal? Q.6 Do you think that Proposal 2 provides adequate regulatory safeguards for users of legal services? Q.7 Do you think that non-compliance with the CPD requirements should result in non-authorisation to practise? Q.8 Do you think that noting on a barristers individual entry on the Register that compliance with the CPD requirements is outstanding would provide more incentive to comply with the requirements in a timely manner? Q.9 Do you foresee any problems in the proposals for the administration of barristers practice? Will they present difficulties for chambers or employers? If yes, how could any problems or difficulties be resolved? Q.10 Do you agree that the transitional arrangements under rule 1102 should be brought to an end? Q.11 Do you agree that no other changes need to be made to the rights of employed barristers in categories 2(b) and (c) above? Q.12 Do you agree that if individuals have not provided the necessary information to allow the BSB to determine their level of authorisation, it should be assumed that they are not authorised to exercise a right of audience? If not, please explain why. Q.13 Do you agree that barristers authorisations and permissions should be listed on practising certificates and on the Barristers Register? If not, please explain why. Q.14 Do you agree that employed barristers should only be authorised to conduct litigation if they comply with all the requirements to do so? Q.15 Do you agree that all barristers with practising certificates should be authorised to provide reserved instrument activities, probate activities and the administration of oaths? If not, what should be the basis for deciding which barristers should be authorised to carry out those activities? Q.16 Do you agree that all barristers with practising certificates should be authorised to provide immigration advice and services? If not, what should be the basis for deciding which barristers should be authorised to carry out those activities? Q.17 Do you think additional rules are needed to regulate these activities? Q.18 Is clearer guidance on holding out and requiring a client or potential client to sign a disclaimer in a prescribed form an adequate safeguard to ensure that members of the public are properly informed of the status of barristers who are not permitted to practise? Q.19 If you disagree, please explain why and provide details of alternative proposals to protect the public in these circumstances. Q.20 Do you agree that the disclaimer should only be given when an individual has reason to believe that the client knows that they are a barrister? If not, please explain why Q.21 If you consider that the disclaimer should be given in all cases when a barrister without practising rights provides legal services to the public, is there a risk that this would undermine the prohibition on holding out as a barrister and if so how could this risk be mitigated? Q.22 Do you agree with the above proposals for revised arrangements for barristers registered under paragraph 206 or 808 of the Code? If not, why not and what alternative proposals would you suggest? Q.23 Do you agree that the arrangements described in paragraph 137 are an adequate safeguard to the public? If not, please explain why and give alternative suggestions. Q.24 Do you agree that a barrister who are not permitted to practise should be allowed to describe themselves as a barrister who is not permitted to practise to their employer or potential employer only? Q25 Are any of the proposals likely to have a greater positive or negative effect on some groups compared to others? If so, how could this be mitigated? Annex 2 History of regulation of non-practising barristers Until 1991, barristers who had not completed pupillage were not permitted to offer legal services or give legal advice to the public at all unless they had the consent of the Bar Council. This caused administrative difficulties as non-practising barristers had increasingly begun to work in solicitors offices and accountants firms. In 1991, this rule was changed so that non-practising barristers were permitted to offer legal services provided that if they used the title barrister, they were required to qualify it with the words non-practising. It was thought that this qualification would put members of the public on notice that the barrister was in a different situation from a practising barrister. Towards the late 1990s, the Bar Council had become concerned about the arrangements. The title barrister (non-practising) was misleading because the individuals concerned were providing legal services as barristers and therefore it was confusing to describe them as non-practising. It was believed that the qualification -non-practising did not sufficiently explain their status. Accordingly, the rules were revised in July 2000 when the 7th Edition of the Code was issued. The rules that came into effect in July 2000 make it a breach of the Code for non-practising barristers to describe themselves as barristers whilst providing (or offering to provide) legal services, thus doing away with the non-practising title. Therefore, non-practising barristers are not prevented from providing legal services, but they are prohibited from describing themselves as a barrister whilst doing so. The definition of legal services in the Code specifically excludes certain activities, such as lecturing or teaching in law, writing articles, and speaking to the press. Non-practising barristers are therefore entitled to describe themselves as barristers when undertaking these and other non-legal related activities. Because the rules that came into effect in July 2000 were more restrictive, a compromise was made so that those who had, under the old rules, been entitled to describe themselves as barristers whilst offering legal services were able to continue to do so. Transitional provisions were included in the 7th Edition of the Code to allow non-practising barristers who had been describing themselves as barristers to continue to do so until 31 July 2005. The intention was that the transitional five year period would give those who were affected sufficient time to either undertake pupillage, gain sufficient experience to allow them to get a waiver of pupillage, or qualify as solicitors. Although the new rules came into effect in July 2000, there continued to be some dissatisfaction with the new approach. In 2001, the Bar Council was asked at its Annual General Meeting to review the new rules governing non-practising barristers who offer legal services. Concern had been raised by non-practising barristers and some Inns of Court that non-practising barristers were being deprived of their qualification because they were being restricted in the circumstances in which they could use their title of barrister. Concerns were expressed about the difficulties for non-practising barristers in dealing with clients enquiries about their qualifications. By November 2003, the Bar Council issued a public consultation on a new set of proposals. The Bar Council agreed that it was unfair that non-practising barristers should be prevented from using their title and therefore proposed to develop new rules to allow barristers without practising certificates to use their academic qualification as a barrister provided that: they notified the Bar Council; they had insurance; and they notified clients and others of their status. In 2004, following the consultation, a joint Bar Council/Inns working party Chaired by Lord Justice Tuckey was set up to consider the responses to the consultation. The working party considered that there were two groups of non-practising barristers to consider in the light of the proposals in the Bar Councils consultation: Those who were called before July 2000 and were covered by the transitional provisions in the 7th Edition of the Code. Those who were called after July 2000 had never been entitled to use the title barrister in connection with the supply of legal services. The working party decided that the Bar Councils proposals in the draft consultation should be implemented in relation to the first group, as they had a legitimate expectation to be able to continue to describe themselves as barristers. This decision was then translated into rules in the Code of Conduct and paragraph 206 and 808 of the Code were introduced, which allowed some non-practising barristers to use the title in connection with the supply of legal services if they notified the Bar Council; they had insurance; and they notified clients and others of their status. The working party noted that there was an issue as to whether and how the second category should be regulated and that this issue should be considered in depth. The working party suggested that the experience gained in regulating the first group might assist in making a decision as to whether and how to regulate the second group. In April 2005, COIC appointed a working party (chaired by Mr Justice David Richards) to consider the regulation of barristers who had been called after July 2000. The group considered and rejected the re-introduction of the term non-practising barrister, as they found the term unhelpful and they did not believe that there was any demand for its re-introduction. The working party also considered whether the required notification to clients called before 2000 should be extended for those called after 2000; however, the prescribed notification was described as overbearing and therefore it was decided not to extend its use. The working party concluded that they did not consider that there was a case for further regulation of barristers who did not hold practising certificates if they continue to be prohibited from using the title barrister when providing legal services. The working party also recommended that the Bar Council, through the Bar Standards Board, should urgently review the training requirements for barristers in order to make it possible for more graduates from the vocational stage to achieve professional status. Alongside the consultations and reviews described above, the Inns of Court, the Bar Council, and then the Bar Standards Board (from 2006) were considering the proposal to defer call to the Bar until after completion of pupillage. In July 2006, the BSB issued a public consultation document asking whether it would be in the public interest to defer call to the Bar until after completion of some or all of pupillage. In June 2007 the BSB issued a report setting out its provisional conclusions. The BSB concluded that deferring call to the Bar until after pupillage would not be a proportionate response to the risk of the public being misled by individuals status. The BSB decided that there was a clear need to provide the public with information about who is and is not entitled to practise as a barrister and, to this end, an online register should be established of all barristers who hold a current practising certificate. The online Barristers Register went live in October 2009. Annex 3 Current Code provisions on holding out Paragraph 201 of the Code provides: For the purposes of this Code: (a) a barrister practises as a barrister if he supplies legal services and in connection with the supply of such services: (i) he holds himself out or allows himself to be held out as a barrister; or (ii) he exercises a right which he has by reason of being a barrister; (b) any reference to the supply of legal services includes an offer to supply such services. Part X of the Code defines legal services as including: advice representation and drafting or settling any statement of case witness statement affidavit or other legal document but does not include: (a)sitting as a judge or arbitrator or acting as a mediator; (b)lecturing in or teaching law or writing or editing law books articles or reports; (c)examining newspapers, periodicals, books, scripts and other publications for libel, breach of copyright, contempt of court and the like; (d)communicating to or in the press or other media; (e)exercising the powers of a commissioner for oaths; (f)giving advice on legal matters free to a friend or relative or acting as unpaid or honorary legal adviser to any charitable benevolent or philanthropic institution; (g)in relation to a barrister who is a non-executive director of a company or a trustee or governor of a charitable benevolent or philanthropic institution or a trustee of any private trust, giving to the other directors trustees or governors the benefit of his learning and experience on matters of general legal principle applicable to the affairs of the company institution or trust; Annex 4 Core duties Below is the current draft of the new core duties which will form the basis of the revised Conduct Rules. The core duties have not yet been finalised, as they (and the accompanying rules and guidance) will need to be checked and amended to ensure they are in plain English. The accompanying rules and guidance are not reproduced here, but are likely to be published during the course of 2010. Core Duties CD1 You must observe your duty to the court in the administration of justice. CD2 You must act with integrity and honesty. CD3 You must maintain your independence. CD4 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession. CD5 You must keep the affairs of each client confidential. CD6 You must act in the best interests of each client. CD7 You must provide a competent standard of work and service to each client. CD8 You must not discriminate improperly in relation to any person. Annex 5 List of consultees Members of the Bar All non-practising subscribers All barristers registered under paragraph 206 or 808 All Heads of Chambers Bar Standards Board Committees/Panels Consumer Panel Complaints Committee Education and Training Committee Performance and Best Value Committee Equality and Diversity subgroup Qualifications Committee Quality Assurance Committee Standards Committee Bar Council Committees/Panels Access to the Bar Committee Bar Council General Management Committee Employed Barristers Committee Equality and Diversity Committee Fees Collection Committee Information Technology Panel International Relations Committee Law Reform Committee Legal Services Committee Professional Practice Committee Public Affairs Committee Remuneration Committee Training for the Bar Committee Young Barristers Committee Consumer bodies National Consumer Council Welsh Consumer Council Consumer Direct LSB Consumer Panel Other bodies Advocacy Training Council Association of Muslim Lawyers Association of Women Barristers Attorney General Bar Mutual Indemnity Fund Chartered Institute of Patent Agents Circuits Equality and Human Rights Commission Council of the Inns of Court Council for Licensed Conveyancers Crown Prosecution Service Department for Business, Innovation and Skills Inns of Court Institute of Barristers Clerks Institute of Legal Executives Institute of Paralegals Institute of Trade Mark Attorneys Legal Practice Management Association Legal Service Board Legal Services Commission Legal Services Ombudsman Ministry of Justice National Association of Citizens Advice Bureaux Legal Ombudsman Office of Fair Trading Office of the Immigration Services Commissioner President of the Family Division President of the Queens Bench Division Society of Asian Lawyers Society of Black Lawyers Solicitor General Solicitors Regulation Authority South East Circuit Minorities Committee Specialist Bar Associations The Law Society  See paragraph 5 of the main paper for a list of reserved legal activities  S28 of the Act.  The BSB consulted in March 2009 on revised Conduct Rules  See the BSBs provisional and final reports on deferral of Call in the closed consultations section of the BSBs website: www.barstandardsboard.org.uk  The three-year rule is laid out in paragraph 203 of the Code. Barristers may only exercise a right of audience if they are working in, or have worked for at least three years, in a chambers or office where there is a suitably qualified person who is readily available to provide guidance.  In 2009, this applied to 41 self-employed barristers.  In 2009, this applied to 26 employed barristers.  This section came into force on 1 January 2010.  See paragraphs 204(b) and 402 of the Code.  From 2003 to 2009, the BMIF referred 65 barristers to the BSBs Complaints Team.  The BMIF will nonetheless continue to report barristers to the BSB who have not paid their insurance premiums.  In 2008, 21 New Practitioners and 245 Established Practitioners were referred to the Complaints Team.  See S14 of the Act.  The activities are further defined in Schedule 2 of the Act.  The Master of Faculties is the only Approved regulator for notarial activities  Paragraph 504 gives all practising employed barristers the right to conduct litigation subject to compliance with the Employed Barristers (Conduct of Litigation) Rules.  Proposed changes to the Code now being considered by the LSB will similarly authorise managers and employees of Legal Disciplinary Practices regulated by the SRA to conduct litigation  Subject to complying with the three year rule  Subject to complying with the Employed Barristers (Conduct of Litigation) Rules Annex I to the Code of Conduct  And in future barristers who are managers or employees of LDPs  Paragraph 201 of the Code can deem barristers to be practising if they hold themselves out as a barrister in connection with the supply of legal services.  See paragraph 301 of the Code of Conduct.  One complaint involved an advert placed by a law firm seeking a Receptionist. The advert said that CVs should be sent to Mr ____, who was described as a barrister. Another involved an advert in a Bengali newspaper for an organisation called ____Chambers.  See Conduct Rules: A Core Duty Approach to Regulation at the Bar at: http://www.barstandardsboard.org.uk/consultations/closedconsultations/  The Sentencing Guidance issued by the Council of the Inns of Court states that in relation to a disciplinary finding of holding out: disbarment could be considered where there is a clear risk to the public and the barrister may be likely to persist in the behaviour.  Consideration will be given in due course to developing a Register of barristers who are not permitted to practise.      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