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Protocol

FAMILY FINANCE & CHILDREN PUBLIC ACCESS PROTOCOL

General
1. Any member of the team accepting a public access case must comply with all the provisions of this Protocol in addition to the general requirements under the relevant rules and Public Access Work Guidance issued by the Bar Standards Board.

2. This Protocol will be kept under constant review.

3. A member of the team shall be free to refuse to undertake public access cases in general or any case in particular. However, no barrister shall refuse to undertake a public access case on grounds that would constitute a breach of the non-discrimination provisions of the Code of Conduct (e.g. paragraph 305).

4. A member of the team is not permitted to undertake public access work unless:
(i) They have practised for a total of three years following the completion of pupillage (unless that requirement has been waived by the Bar Council);
(ii) They have attended a training course approved by the Bar Standard Board;
(iii) They have notified the Records department of the Bar Council and their insurers of their intention to undertake such work.

5. In addition, a member of the team shall not be marketed for public access work, and shall not be included on the Chambers’ list of barristers available for such work, unless:
(a) They have agreed to be bound by the terms of this Protocol;
(b) They have demonstrated compliance with the terms of this Protocol;
(c) They have supplied any marketing material including photographs and CVs as requested of them.

6. A barrister may only accept a public access case if he or she is able to carry out the work to an appropriate standard and in an appropriate time scale. The barrister must assess and keep under review whether the case would be better served by the instruction of a solicitor.

7. The barrister may only undertake such work as is covered within the scope of the client care letter signed by the client and any further work will require receipt of a new letter signed by the client.

8. Each barrister undertaking public access work must familiarise himself or herself with the functions that a barrister is permitted to undertake under the relevant rules and guidance (and any changes in those rules) and ensure that the work undertaken does not breach those rules or guidance.

9. All communications with the lay client are to be conducted by email (or otherwise in writing) unless a telephone or face to face conference is arranged in which circumstances the record keeping requirements of paragraph 30(c) below will apply.

10. Each barrister will ensure that they have access to their emails on a regular basis and, as a minimum, on at least one occasion each working day. If the barrister is unable to comply with this requirement (due to work commitments, holiday or for some other reason) they must set up an ‘out of office’ reply to notify the client when the barrister will next have access to his or her emails and directing the client to contact the clerks if a more urgent response is required.

11. Each barrister will endeavour to acknowledge any email received from the client within 2 working days of receipt.

Initial Receipt of Instructions
12. Upon receipt of a completed drop down application form the barrister will consider the request within 1 working day and either:
(a) Inform the family team clerk that the barrister is able to undertake work for this client. The next step will normally be for the clerk to arrange a fixed fee conference (see paragraph 18 below) unless this is not practicable due, for example, to an urgent court hearing; or
(b) Inform the family team clerk that the barrister is not able to undertake the work for this client with a copy of the form produced in accordance with paragraph 14 below. The clerk will then allocate the case to another barrister for a second opinion.

13. In the event that 2 barristers have refused to undertake the requested work then the family team clerk shall inform the client that it will not be possible to assist them on this occasion.

14. If a barrister decides not to accept initial instructions from a public access client following receipt of the drop down form he or she shall complete the Chambers Pro-forma document indicating by way of ‘tick’ box which reason or reasons for refusing the case apply.

15. In cases where either i) prospective instructions to a barrister emanate from a client who has previously instructed him or another member of chambers through a solicitor, or ii) or the acceptance of public access instructions is likely to have the effect of damaging a relationship with a solicitor who regularly instructs one or more than one member of chambers, the barrister shall not accept the public access instruction without first discussing the matter with both the Senior Family Team Clerk and the Head of the Family Finance or Children Team, and obtaining the consent of the latter. The barrister may refer any case in which consent is withheld to the Head of Chambers for a final decision as to whether instructions can be accepted in cases falling within the categories referred to.

16. If a solicitor is currently instructed by the client then the barrister may accept public access instructions but it is important that the barrister should consider whether the instructions would best be provided by the solicitor (e.g. because the matter is complex) and must be satisfied that the solicitor is aware that the client proposes to instruct him or her direct.

The First Conference
17. Before undertaking any work on a case (including the initial conference) the barrister or the barrister’s clerk shall establish the identity of the client by obtaining a copy of their passport or driving licence and a document establishing proof of the client’s address. It will normally be convenient for the client to bring these documents along to the conference.

18. Any decision to accept instructions from a client should initially be limited to a face to face meeting. It will be unusual for a barrister to accept instructions from a client (e.g. to appear in court) without such a meeting. The meeting will enable the barrister to obtain further information about the case and about the client and to explain to the client how the public access relationship operates. The barrister should charge a fee for the meeting even when the decision is then taken not to accept any further work from the client. A standard fee may apply across chambers for this initial conference.

19. If, after the initial conference, the barrister thereafter declines to undertake any further work for the lay client the barrister must record a summary of the reason(s) for this decision.

20. If substantive work (beyond the initial conference) has been undertaken on behalf of a lay client, then the barrister will need to demonstrate good objective reasons for taking the view that a solicitor needs to be instructed or the case is otherwise unsuitable for public access and must record those reasons. Where court proceedings are on-going the barrister must bear in mind the particular difficulties a client may face if the barrister withdraws.

Further Instructions
21. Each piece of work will need to be subject to a separate agreement which must be in place before the work is undertaken.

22. A barrister must give careful consideration to the fee basis of any instructions, bearing in mind that he or she is not entitled to hold client money on account:
(a) In matters relating to children, work should only be undertaken on a fixed fee basis. If it is not possible to estimate accurately the amount of work likely to be involved in the instruction that is a good indication that the work is not suitable for public access.
(b) In matters relating to family finance or divorce, work should normally be undertaken on a fixed fee basis. In exceptional circumstances it may not be possible to estimate on instruction the amount of work likely to be required but in that event the barrister should not hand over any completed work unless a fee has been agreed and paid for that work.

23. When supplying information to the clerks for the purpose of calculating the fixed fee payable the barrister should remember the time that will need to be spent and any photocopying costs incurred in:
(a) Compiling the complete file of documents required as above and
(b) Writing the attendance notes and notes of instructions and advice as below.

24. In the event that a fee remains outstanding for a piece of work undertaken, the barrister shall not undertake any further work for the client until that fee has been received, save in very exceptional circumstances.

25. If a barrister accepts a public access return from another barrister in Chambers, that barrister must accept the fees that have already been agreed unless a different fee is agreed with the client and confirmed in writing. Any barrister accepting a public access return will, in any event, need to complete a new agreement in his or her own name with the client.

26. All public access work undertaken by a member of the team shall be arranged and billed through Chambers. A barrister shall not arrange to see a client or represent that client at a hearing or mediation, etc unless the appointment has been arranged through the clerks and entered into that barrister’s Chambers diary. The barrister will notify the clerks immediately if she / he is asked to undertake paperwork on an existing case.

27. If a barrister is asked to complete a piece of paperwork for the lay client then, at the time the agreement is sent to the client for signature, the barrister will also agree a date for completion of the work which will, ordinarily, be within 14 days of receipt of the signed agreement. The barrister must notify the clerks of the date agreed for completion of the paperwork.

28. In the event that the barrister is unable to adhere to the agreed date for completion, the barrister must, before the date has expired, notify the client when the work will now be completed by or ask the clerks to do so. The clerks must be kept fully informed of the new date agreed with the lay client.

29. After the conclusion of each case, the client will be sent a feedback form. The responses will be collated by the family team clerks and any items of interest or concern passed to the head of the relevant Team.

Record Keeping
30. It is essential that a member of the team undertaking public access work keeps accurate records at all times of such work, in particular:
(a) The barrister will compile a complete paper copy file of all documents which shall be kept in Chambers unless the barrister is attending court on the matter or otherwise undertaking work on the case. That file must be retained for at least 7 years and may be stored electronically in a secure manner and in accordance with Chambers’ Data Protection Policy.
(b) This file shall include such documents as are supplied by the client or by another party to the litigation, such documents as may be received from the court, documents drafted by the barrister, dated notes of meetings and telephone conversations with the client, copies of all written agreements with the client, correspondence with the client and attendance notes of hearings attended.
(c) A written note must be made of all instructions given by the client and all advice given by the barrister whether by telephone or in conference. This note shall be made as soon as possible after the instructions and / or advice has been given.
(d) All documents produced in accordance with paragraph 17 above.

June 2012

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