Setting up a direct access practice: Maria Scotland discusses with Counsel Magazine

As the pandemic’s influence on practice bites, Maria Scotland, Andrew Granville Stafford, and Daniel ShenSmith outline the key requirements that apply to public access work, the direct-client experience and advice on effective marketing. This article was originally published in the February edition of Counsel Magazine and the original article can be viewed here.

Maria Scotland discusses the ups and downs of direct access work with Counsel Magazine:

Over the years the number of direct access cases in my diary has increased. This has hiked up during the pandemic with changes in client behaviour. Additionally, I am now busier than I can remember in my 25 years+ at the Bar. This has happened without me gearing my practice to direct access.

I joined the Bar Council directaccessportal.co.uk and mybarrister.co.uk website after a Family Team meeting three years ago. The work started to come in and has not stopped. A good number of my cases come from referrals.

Clients need close attention and a firm hand, but as a single mum with two teenagers I slip into handling my clients without too much difficulty, although emotionally it can be draining and get too ‘close’ for comfort, so breaks are needed every now and then.

The upside of this area of work is that fees are paid in full upfront, so I have no aged debt associated with this work. Fees are generally higher than through a solicitor, which makes the work relatively profitable. Generally, cases are not with me for too long (about three months maximum) although with lockdown and cases being adjourned, some clients have been with me for longer than usual (six months to a year). I form good relations with my clients and job satisfaction is high. Although some clients can be difficult, they are always grateful at the end of the case. I am yet to have a disgruntled client because whatever the outcome, it is the emotional crutch they have needed during the case.

The downside, in my own personal view, is that others in the profession look down on work done on this basis and I have fallen out of the Bar directories. Praise and accolades at the Bar are often reserved for those who serve well-heeled solicitors or other professional clients. In my view, chambers doing this type of work on a regular basis are therefore not seen as terribly good and I feel I fall into the same category – until I’m in a case and then I get treated no differently; neither the judge nor my opponent care that I am direct access. 

Maria Scotland is joint Head of the Family Team at 5SAH, London. She started taking on direct public access clients in 2010. Maria practices exclusively in family law with a specialism in high-end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis.  You can contact the 5SAH clerking team here.

Andrew Granville Stafford - The five keys

Public, or direct, access is doing the same differently. Fundamentally, advice and advocacy does not change, however you are instructed. But there are differences in how barristers provide our service directly to lay clients.

Here are five key requirements that apply to public access work, which do not apply when engaged by an instructing solicitor:

1: Training

You cannot register as a public access practitioner without completing an approved training course. Details are on the Bar Standards Board (BSB) website. Courses are held on either one or two days, including weekend courses, and range in price from £354-£528 including VAT. This is (hopefully) not the tiresome chore it might first appear to be. Through Barristers Direct I have been teaching on these courses for nearly a decade. We consistently receive feedback from attendees saying how surprisingly informative and enjoyable they found the training.

2: Client care letter

We must send a client care letter to every public access client. Why? Principally because there are eight things that the Public Access Rules say we must inform our client of in writing. These include our contact details, the limits on what we as barristers can do (compared to solicitors) and what rights the client has to complain. They also – or should – set out in clear terms precisely what work we will do and the fee. Although not a requirement of the rules, we can also specify when that fee is to be paid. Many find requiring the fee up front to be an advantage of public access work.

3: Record keeping

At the end of the case, we can’t simply wrap the pink ribbon round the brief, send it back and rely on the solicitor to archive it – because there is no solicitor. The Handbook imposes a seven-year requirement – because of the normal limitation period of six years, plus one for good measure – for retaining public access papers.

4: Websites

New rules were introduced into the Handbook in July 2019 in relation to what we put on our chambers’ websites. Some of these rules are specific to public access work. For example, if you do employment or financial remedies cases for public access clients you need to set out your pricing policy, which may include a range of indicative fees. Lengthy guidance on the application of these rules can be found on the BSB website.

5: Best interests

Whilst we should never take on any case if not competent to handle it, there is a gloss on that principle in direct access work. We must consider in every case whether the client would be better off going to a solicitor. The answer in many cases is no, because of the cost saving the client is making by instructing directly. However, the client must be competent to handle their own litigation, and if not, the public access barrister will usually be advising the instruction of a solicitor. 

Andrew Granville Stafford is Chair of the Bar Council’s Direct Access Panel, an elected member of the Bar Council and on the Ethics Committee. He is Head of Civil Litigation at 4KBW.