Two lawyers for a legal manoeuvre is one too many, says Alkan Shenyuz.
In 2004, an almost ancient custom in the English legal profession which decreed that members of the public could not hire barristers was swept away as part of a reform initiative to modernise the Bar profession. Until that time, members of the public were required to hire a solicitor who, in turn, would hire the barrister. The solicitor would act as a sort of intermediary, helping to translate the complex legal language of the barrister into plain English that clients could easily understand. The cost implication of needing two lawyers for court proceedings in England was something of a mystery for many clients and often difficult to justify.
The new system, known as ‘public access’ or ‘direct access’ allows businesses and individuals (who are not lawyers themselves) access to the specialist legal advice of barristers without the need to consult a solicitor first. Provided that the barrister is able to provide public access services in the first place (they are required to undergo specialist training) and the matter is not one where the client would benefit from the services of a solicitor, there is often good reason why a barrister may make more sense for a client. In many instances, HNWs and business that require regular legal support could benefit from using a barrister directly.
The first advantage for any client using a public access barrister is lower legal fees. While barristers traditionally have a reputation for charging a lot of money (generally, due to the highly complex nature they are asked to advise on), the overall cost of not involving a solicitor for the same work is likely to mean a huge saving for clients. Barristers are largely free to agree a fee structure that suits the client’s needs whether that means charging on an hourly basis or a pre-agreed fee.
For relatively straight-forward matters, the fees of a barrister will probably be lower than those of a solicitor as barristers offering direct access services have fewer overheads. Not having to involve a solicitor will also save time for clients by not having to co-ordinate with two busy schedules. Knowing where to find a barrister who specialises in providing clients with direct legal advice and those who are able to compete with solicitors on fees is key.
The Bar Council maintains a list of barristers who provide their services directly to the public. Other directories such as the Chambers and Partners Guide to the Legal Profession and the Legal 500 also contain information about barristers’ chambers and individual barristers who may provide direct access legal services.
For HNWs in particular, direct access to barristers can be hugely advantageous. Clients with complex tax and business arrangements may find that a barrister concentrating on commercial or tax law may be able to draft customised contracts from a specialist angle, deal with court applications more swiftly or give detailed legal advice based on his or her own experience with how English courts might deal with a given matter if it was put in front of them. In certain situations where a high net worth client is looking to reduce litigation risk, a commercial solicitor, by contrast, may not have the benefit of the deep case law experience that a barrister has and that could make the crucial difference where delicate advice is called for.
Similarly, a contract can often turn on the interpretation of a single word and a barrister who has good experience in commercial contract law will be a worthy guide to effective drafting. Last year in the case of Arnold v. Britton & Ors, the Supreme Court held that clear words in a commercial contract should not be overturned merely because they were not commercially sensible. This would apply even if the effect would be commercially disastrous for either or both of the parties. HNW clients looking for this level of attention to their contracts (where a standard contract might not do the job) could very well benefit from the highly specialised sort of service a barrister is able to offer.
Alkan Shenyuz is a barrister with Church Court Chambers specialising in commercial and banking law.