Barristers acting under a Retainer or other Novel Fee Arrangement

The PSC and PCCC are sometimes asked to consider the propriety of “retainers” or other novel fee arrangements, particularly in relation to problems of conflict of interest in appearing against the party paying the retainer.  On analysis, many of the problems stem from the fact that there is no generally-accepted definition of “retainer” (for example, in the Bar Council’s standard-form Contractual Terms and CFA, it appears to be used simply to mean a barrister’s agreement with a solicitor to provide legal services).  To avoid issues of terminology, we have set out below the various types of arrangement that are sometimes called “retainers”, and may give rise to problems in practice, together with our views on the answers to those problems.

2. Payments giving the client a “call option” on the barrister’s services and barring him from appearing against that client

 

This is the traditional type of retainer, abolished in the 1980s but now apparently creeping back.  In our view:

 

a. A “general retainer” (whose effect is that the barrister is debarred from acting against that client in any matter, whether or not he has received instructions to act for him in a particular case) will usually be bad:

i. because, in the absence of a true conflict, it is an affront to the cab rank rule, and to the free availability of legal services;

ii. because the barrister will be receiving a payment, but not providing any legal services in return.

 

b. A “special retainer” (debarring the barrister from accepting a brief from any other party in a particular case) is likely to be subject to the same objections, at least up to the time when instructions are received.

 

 

Whether it is permissible to charge a “booking” fee depends on what is meant by a booking fee in any particular case.

 

Para 405 of the Code of Conduct provides that a self-employed barrister may charge “for any work undertaken by him” on any basis or by any method he thinks fit provided that such basis or method is permitted by law and does not involve the payment of a wage or salary.  Where it is proposed to charge or incur fees before work has been undertaken, the question whether the arrangement is permissible will depend on whether the fee can be said to be incurred on account of work undertaken or to be undertaken.

 

For example, where a barrister agrees to keep himself free in order to undertake a particular piece of work, it will be acceptable to charge a non-refundable fee so long as that fee is payment on account of the work it is anticipated will be carried out.  The fact that the barrister is in the event not required to carry out the work does not affect the fee being paid for work to be undertaken.  Such an arrangement is no different in principle from a brief fee which is incurred in whole or part before the papers are delivered and is treated as non-refundable if the case settles.  However, there are cases where barristers have sought to charge merely for “agreeing to act” in respect of a particular matter (but not for undertaking any further obligation). Such a fee is not a fee for work undertaken or to be undertaken and is potentially objectionable.

4. A condition, attached to a standard brief or instructions, purporting to debar the barrister from acting against that client in the future

 

Some major clients are said to seek to impose this as a pre-condition of receiving instructions from them.  We believe that the problem most commonly occurs in relation to insurance companies, national newspapers, large accountancy firms, and some US clients. We have also been made aware that those who are members of certain government panels at times feel under (or are placed under)  pressure not to accept instructions to act against the governmental body on whose panel they serve.  

 

In our view, it is professionally improper for counsel to agree, expressly or implicitly, to such a condition.  In effect, it is an attempt to “contract out” of the cab-rank rule, which positively obliges counsel to accept instructions against an existing or former client unless a specific conflict, generally relating to confidential information, would result.  Counsel must be free to test the proposed new instructions against the existing ones on a case-by-case basis; or else major clients would quickly “scoop the pool” and monopolise competent representation in their field.

 

 

Provided the object is genuinely to ensure that the barrister has sufficient time to deal with the work (and provided it does not prejudice other, pre-existing clients) there appears no objection in principle to this.