Increasingly Financial Planners are dragged into the legal world. A client may complain of negligence, there may be a letter from the FSA or another body which demands attention. But how should these be dealt with in an efficient manner?
For Financial Planners coping with legal matters, an area where few have substantial competence, is often a potential headache and a drain on time and resources.
Most planners would turn to a solicitor and these have traditionally been one of the first ports of call. However, the solicitor may not be an expert in financial legislation and financial matters generally. This would then necessitate finding a barrister with the requisite knowledge to provide good advice.
Although few planners realise it, since 2004, they can now go direct to a barrister, if they wish, and get specialist advice from an expert. Barrister Alison Potter explains how direct access works and explores some of the positive aspects of using a barrister and some of the potential pitfalls of instructing a barrister direct.


If you received one of those nightmare calls from a client complaining (quite unjustifiably no doubt) that your advice was deficient, negligent even; or a letter from the FSA imposing some requirement which may be misconceived or just unnecessarily onerous, to whom would you turn?
Where could you get easy access to expert legal advice for an understandable fee? It's a question many planners puzzle over, usually when they are under pressure. Traditionally, the only option available was to call your solicitor and ask for help. He or she might have expertise in financial service matters, and they might not. If they did not they would need to find a solicitor or barrister with the relevant expertise to give you advice. It would be likely that you would have had a team of people assigned to help you with your problem.
The good news is that since 2004, you can now go direct to a barrister and get the specialist advice that you need. The bad news is that it is still the case that many people are unaware that this route is either available or desirable. However, Financial Planner magazine has kindly given me this opportunity to explain how direct access works, why it is a good idea, and also to explore some of the potential downsides of instructing a barrister direct.
The rules allowing barristers to accept instructions directly from professional clients or members of the public were put in place in 2004 by the Bar Council following the review of legal services carried out by Sir David Clementi in 2003. This led to the Legal Services Act 2007 and indeed further reforms opening up the structures by which the legal profession can operate were implemented in 2011. It has been a slow process getting direct access into the market and being used, but the trend is ever upward. As a general rule, before a barrister may accept any public access instructions they must have practiced for a total of three years following completion of pupillage and have attended an approved training course. According to a Bar Standards Board consultation paper published in 2011, 4,143 members of the bar have now completed the public access training course which is around one third of the barristers working from chambers.

So, what services can a barrister offer a Financial Planning professional?
The services typically offered are: Advice – by telephone, in conference or more
formally in writing. Barristers can advise on contracts, compliance, regulatory issues, complaints made by or against planners, litigation, in fact pretty much any legal problem planners are likely to meet in their professional life.
Drafting – barristers can draft letters, claims, contracts, settlements and any paperwork required for adjudication, mediation or litigation including witness statements based on planners' instructions, pleadings, position statements and any other documents needed to present your case.
Attendance – barristers can attend internal meetings such as board meetings or project or other external meetings.
Negotiations – negotiating on your behalf at without prejudice or similar meetings.
Advocacy – the traditional area for the bar, representing planners in court, at adjudication hearings, mediations and all other forms of disciplinary, regulatory and dispute resolution hearings.
Why go direct to a barrister?
You might not expect cost to be top of the list, but in fact the bar can offer a cost effective service. If you instruct a barrister directly, there is no duplication of cost, you pay one lawyer to do one job. He or she will have an hourly rate and will often agree to offer a service on a fixed cost basis or agree some other arrangement such as a fixed ceiling. The sorts of rates you might expect from a barrister based in London would be from around £80 per hour for a junior barrister of three years' experience on a rising scale and from £250 per hour for a QC. As a general rule, the more senior and experienced the barrister, the higher the hourly rate. An attractive feature of direct access is that you can choose the seniority and the cost of the barrister according to the complexity of the problem faced. Hourly rates tend to compare favourably with solicitors' rates of the same seniority as barristers do not generally have the same level of overheads as solicitors' firms. Here are a couple of examples of how it can work:
Case study 1
A company needed to know urgently whether it was required to report itself to the Financial Services Authority. The company decided to instruct a QC directly. Within two days of the problem arising, the company had clear and definitive advice and was able to decide what to do. The total bill including a two hour conference came to less than £1,000.
Firms will also receive a service tailor made to what they want and need. They can choose a barrister with the expertise and the experience they require. They can agree what service they want to be provided. Instead of handing the legal problem over to a legal team and out of their hands, they may prefer to conduct the correspondence and run the case themselves with a barrister on hand to draft letters and other documents and provide advice as and when it is needed. This provides the client with effective cost control and a full and direct understanding of what is happening in their case.

Case study 2
An IFA directly instructed a QC to defend pension mis-selling claims. Over the course of two years the barrister drafted numerous letters on behalf of the IFA, identified lines of defence including human rights arguments, and assisted the IFA in bringing a claim against his professional indemnity insurers. The total bill for two years' work was £7,500.
A further advantage of direct access would be convenience and informality. The traditional image of a barrister might be crusty and fusty, but the modern barrister tends to be very flexible, accessible and client-friendly. Assistance can be offered by telephone, email or face to face. Barristers are happy to host a meeting with you in their chambers or are often willing to travel to your place of work or some other convenient location. They are alive to the advantages of meeting a client in their own surroundings and perhaps in a location where the paperwork is kept.
Lastly, speed. With direct access, planners can pick up a phone and be directly in touch with the specialist adviser dealing with your problem.
What are the disadvantages?
Perhaps the greatest obstacle is knowing who to contact. Firms who use a regular solicitor may well have a trusted adviser who can direct them to a recommended specialist. It can be difficult to find a suitable barrister if you do not know where to start. Perhaps this is an area where the Bar could make itself more accessible. There are various directories and lists, such as the public access directory on the Bar Council website, but it might be daunting to choose which barrister to approach.
The best option if firms have no route to a personal recommendation, as with much in life now, is probably to turn to the internet, find some barristers' chambers with financial services expertise and look up a few. Most chambers websites are easy to navigate and have pictures and CVs of each barrister. If you like the look and credentials of a particular chambers, ring the clerks and they will be able to suggest suitable individuals, rates of charging, and provide firms with information and often more detailed CVs.

How much it will cost to go to a barrister? How do I keep control of costs on an ongoing matter? I would say that this is a matter of education – a barrister will only do the work firms or individuals instruct them to do. Both parties will be keen to agree a rate of charging, and most barristers will offer a fixed price service if the work is suitable for that method of charging and if desired by the client.
There might also be anxiety over whether the very fact of instructing a barrister is making a mountain out of a molehill. Is it worth taking this annoying problem to a barrister, will it escalate beyond my control?
Again potential direct access clients should take comfort that in going to a barrister they probably have the best chance of obtaining a clear assessment of the problem and what will be involved in solving it. The scope of work and its cost can be clearly agreed in advance. If it is indeed a molehill, it will be dealt with quickly and cost- effectively. If it really is a mountain of a case it is probably wise to get the best advice you can and an assessment of the costs involved at the earliest opportunity.
Finally – what are the tasks a barrister cannot undertake?
A barrister cannot conduct correspondence for you as your legal representative in the way that a solicitor will. They can draft the letters for you to send, but you will not get the headed note paper from your lawyer that your solicitor can send. Also, a barrister's chambers does not tend to have the administrative backup to organise large volumes of papers. If your case is of the voluminous variety however, a barrister will probably either suggest instructing a recommended solicitor to deal with the document management, or there are now plenty of firms which offer electronic and paper document management services which can be directed by firms and their barrister together.
So – if planners are interested – how do they instruct a barrister?
Just pick up the phone and ring the clerks of the chambers you choose. They will recommend a barrister of suitable expertise and experience for your case and co-ordinate with that barrister as to the best way for you to instruct them, in writing or over the telephone, or at a meeting. After that, you simply agree the best way forward together.