Barristers leaving chambers

Introduction

1) It is becoming increasingly common for members of the Bar to move to different Chambers in the course of their careers. Such moves give rise to questions about the responsibilities owed by both barristers and Chambers in such cases, which are frequently referred to the Bar Council. Many of the questions involve issues of law on the detailed facts of the situation on which the Bar Council cannot advise. In many cases, the mutual responsibilities are set out within the Chambers constitution. Not all chambers have a constitution and the Bar Council believes, therefore, that it would be useful to set out what it sees as good practice when this situation arises.

2) The guidance will address those areas that appear to cause the most difficulty when a barrister leaves Chambers. It is important to note, in particular the obligations in the Code, which are set out at paragraph 404 and are as follows:

404.1 The obligations in this paragraph apply to the following members of chambers:

(a) any barrister who is head of chambers;

(b) any barrister who is responsible in whole or in part for the administration of chambers;

(c) if there is no one within (a) and (b) above, all the members of the chambers.

404.2 Any person referred to in paragraph 404.1 must take all reasonable steps to ensure that:

(a) his chambers are administered competently and efficiently and are properly staffed;

(b) the affairs of his chambers are conducted in a manner which is fair and equitable for all barristers and pupils;

(c) proper arrangements are made in his chambers for dealing with pupils and pupillage and, in particular,

(i) that all pupillage vacancies are advertised in the manner prescribed by the Bar Council;

(ii) that such arrangements are made for the funding of pupils by chambers as the Bar Council may by resolution from time to time require;

(iii) that in making arrangements for pupillage, regard is had to the pupillage guidelines issued from time to time by the Bar Council and to the Equality and Diversity Code5 for the Bar;

(d) Proper arrangements are made in chambers for dealing with equality opportunity issues and in particular,

(i) that Chambers appoint at least one Equal Opportunities Officer

(ii) that Chambers shall have a written Equal Opportunities Policy made available to all members of Chambers and Staff and to the Bar Council when required, which shall set out the policy adopted by Chambers in relation to each of the Action Areas in the Equality and Diversity Code for the Bar and shall have regard to the recommendations in the Code.

(iii) that no barrister shall take pupils until the steps set out in (i) and (ii) above have been complied with.

(e) all barristers practising from his chambers whether they are members of the chambers or not are entered as members with BMIF and have effected insurance in accordance with paragraph 402 (other than any pupil who is covered under his pupil-master’s insurance);

(f) all barristers practising from his chambers comply with paragraph 403.2 (a)(iii);

(g) all employees and staff in his chambers (i) are competent to carry out their duties, (ii) carry out their duties in a correct and efficient manner,

(iii) are made clearly aware of such provisions of this Code as may affect or be relevant to the performance of their duties and (iv) all complaints against them are dealt with in the manner set out in paragraph 403(e) above;

(h) all registered European lawyers and all foreign lawyers in his chambers comply with this Code to the extent required by the Registered European Lawyers Rules (reproduced in Annex B) and the Foreign Lawyers (Chambers) Rules (reproduced in Annex H);

(i) fee notes in respect of all work undertaken by all members of chambers and pupils and (unless expressly agreed with the individual) former members and pupils of chambers are sent expeditiously to clients and in the event of non-payment within a reasonable time, pursued efficiently.

(j) every barrister practising from his chambers has a current practising certificate in accordance with paragraph 202(c) of the Code of Conduct and the Practising Certificate Regulations (reproduced in Annex D).

404.3 In carrying out the obligations referred to in paragraph 404.2 any person referred to in paragraph 404.1 must have regard to any relevant guidance issued by the Bar Council including guidance as to:

(a) the administration of chambers;

(b) pupillage and further training; and

(c) good equal opportunities practice in chambers in the form of the Equality and Diversity Code for the Bar

3) It should be noted that this guidance is subject to the provisions of any Chambers’ constitution and to the law in any particular case. Different factual situations may well give rise to different responses.

4) An arbitration award in 1988 (B v B) provided helpful guidance to the Bar on many of the issues outlined here. While this can only be of persuasive value, we believe that it is still relevant and understand that the award reflects the standard practices adopted by Chambers. Copies of the award can be obtained from the Representation and Policy Department of the Bar Council.

Leaving Chambers

Notice periods

5) When a barrister departs from Chambers it is usual for notice to be given. Either the barrister should serve the given period of notice or should pay notice to compensate Chambers for loss of income during that period. The Code of Conduct does not specify any mandatory length of the notice period. It does however make it clear that Chambers should be administered “fairly and equitably” The Bar Council takes the view that it is for Chambers to decide how to run itself, subject to that general duty. It would be good practice for the matter to be dealt with in the Chambers constitution.

6) Having said that, the arbitration took that view that a three-month notice period to Chambers is standard and, in the absence of any provision in the constitution, or other practice in Chambers, it is likely that this would be persuasive to a court or arbitrator. There is nothing, however, to prevent Chambers having notice periods which are greater than that. The Bar Council might however become concerned if the length of notice period was so great that it amounted to unreasonable constraint on the barrister’s ability to leave Chambers and there was no good reason to justify it. Chambers should have regard to what is “fair and equitable”.

7) It is more unusual for Chambers to decide that they no longer wish an individual to be a member of Chambers. It can, however, happen, in a number of circumstances and Chambers will need to consider its duties in the light of each case and the duties under the Code of Conduct. The likely situations include:

Gross misconduct (for example, proven dishonesty) which is likely to justify instant expulsion from Chambers;
Complaints either from outside or within Chambers against an individual, which may not of themselves be sufficient to justify expulsion but which, cumulatively, may do so;
A breakdown in relationships without any misconduct being involved;
Failure to pay rent or otherwise comply with the terms of membership;
Disputes over changes to the constitution or other matters;
Chambers deciding, for whatever reason, to dissolve.

8) In all cases, it is essential that Chambers should act fairly towards the individual and make proper investigations. Chambers should have a proper procedure for dealing with such grievances and it is generally appropriate to involve all, or at least a representative proportion of Chambers in reaching such a decision. In deciding whether to expel a member, Chambers should also bear in mind the consequences of such an expulsion on the individual. For example, if the barrister has been in practice for less than 3 years following pupillage, then he or she will not be able to practise outside Chambers and it will often be right to ensure that they have sufficient opportunity to obtain new Chambers.

Payments on Leaving Chambers

9) While it is open to a barrister to work out the notice period, it is more usual, particularly if he or she is joining another set, to leave immediately. A barrister who leaves Chambers immediately on notifying Chambers of his or her intention to do so is, therefore, likely to be liable to Chambers for a sum equivalent to 3 months’ rent or more, depending on the relevant notice period. If clerks are paid separately, then payments are likely to be owed to them also.

10) The arbitration took the view that clerks are entitled to:

Their percentage on fees for all work completed or for which a fee is incurred while the barrister was a member of Chambers;
An amount equivalent to 3 months’ notice, which could be calculated by taking the previous 12 months’ earnings, dividing it by 4 and taking the percentage of that.

11) It is suggested that this would be a convenient way of dealing generally with liabilities to Chambers where Chambers receives a percentage of fees, rather than a standard amount in rent.

12) It is also open to the barrister to negotiate with their former Chambers some agreed amount in settlement or some other way for accounting for the commission. For example, both Chambers could agree that the percentage on work booked by the old Chambers and completed within the three month notice period be paid to the old set – this may be of particular relevance to criminal sets where the graduated fee scheme may cause practical difficulties with the guidance at paragraph 10. In agreeing such arrangements, Chambers should be aware that they may become precedents for dealing with future situations.

Fee collection

13) The Code of Conduct imposes a duty on Heads of Chambers, in the absence of an agreement to the contrary, to ensure that outstanding fees owed to former members are collected effectively (paragraph 404.2(h)). The Bar Council receives a number of queries and concerns about this. Essentially, we consider that this duty requires Chambers to:

Collect fees as if the barrister were still a member of Chambers;
Keep the barrister informed regularly of progress with fees and provide him or her with information to enable compliance with duties to the tax and Vat authorities.

14) It does not appear to us the fact that there is a dispute over fees overrides this duty. Failure of Chambers to carry out its duties here can amount to professional misconduct on the part of the Head of Chambers or other individual responsible for administering Chambers.

15) There is nothing in principle however to prevent the barrister from arranging for the fees to be collected by his or her new chambers or, indeed, to collect them him or herself.

Aged debt

16) Unless there is an agreement in advance between chambers and the departing barrister, the chambers concerned should provide full details of the barrister’s aged debt. The Professional Conduct and Complaints Committee has made it clear that, as fee records belong to the individual barrister rather than to Chambers, it is not acceptable for Chambers to withhold this information in lieu of any outstanding monies owed by the barrister. To do so would be contrary to the requirement to run chambers in a fair and equitable manner.

Data Protection Act

17) Information held on a computer by a set of chambers about a barrister, whether a present or former member, is data for the purposes of the Data Protection Act 1998. This would include information retained by Chambers on aged debt. Therefore, under section 7 of the 1998 Act, a departing barrister or former member of Chambers would, on request, and payment of a £10 fee, be entitled to receive within 40 days a copy of that information in intelligible form.

Joining Chambers

Chambers’ Debt

18) A barrister intending to join a new set of Chambers should consider carefully, before accepting an offer of tenancy, whether the prospects of the tenancy justify committing themselves to onerous terms. It is also incumbent on the new Head of Chambers to ensure that the prospective member is fully aware of the terms of his membership of Chambers (including the constitution or any other documents setting out liabilities). In addition new members should be made aware of any liabilities or other issues which might affect their decision to join Chambers. Failure to disclose these may cause problems in enforcing these obligations and might amount to professional misconduct.

Disputes

19) Disputes often arise over money owed to Chambers by a member on departure. It is obviously sensible to see whether they can be resolved by agreement. If this is not possible, then it is open to Chambers to use any remedies at civil law that it considers appropriate. Barristers should obviously seek legal advice before this arises.

20) As an alternative, the Bar Council offers an arbitration and conciliation service to barristers who are in dispute with their Chambers. Both sides must agree to be bound by the findings or to assist the conciliation. The decision of an arbitrator is likely to be binding under the Arbitration Act and failure to abide by such a decision is likely to be treated as professional misconduct. This service is free to those who have paid the voluntary subscription to the Bar Council. Those wishing to have further information should contact Mark Hatcher at the Bar Council.

21) The Bar Standards Board will only look at complaints against barristers where there is a clear breach of duties under the Code. Failure to pay outstanding Chambers dues is unlikely to amount to misconduct unless the barrister is in breach of a court order or has not complied with the decision of an arbitrator.

Conclusion

22) This guidance addresses the main issues that arise when a barrister leaves Chambers it also highlights some of the problems that occur if there is no clear Chamber’s policy to deal with the situation. The Bar Standards Board, therefore, strongly recommends that all Chambers have in place a constitution which clearly sets out the responsibilities of the departing barrister to chambers and the obligations that Chambers owe. A standard constitution can be found in the Bar Council’s Practice Management for the Bar.

23) Should you have any queries please contact the Representative and Policy Department of the Bar Council.

December 2003