Barrister compliance with transparency rules increases sharply

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Websites: Information not easy enough to find

The Bar has improved its compliance with the rules on transparency and more consumers are shopping around for potential providers, Bar Standards Board (BSB) research has found.

It said that 62% of the 572 self-employed barristers, chambers and BSB entities assessed were now fully compliant with the rules, compared to just 37% the last time the BSB conducted a similar exercise two years ago.

Only 6% were non-compliant, down from 25% in 2020, while the rest, 32%, were partially compliant.

Since January 2020, barristers have been obliged to provide details of the services they offer, explain their most commonly used pricing models and give guidance around timescales for work, among other information.

There are additional rules for public access barristers that require them to provide details of indicative fees, additional costs such as court fees and indicative timescales for the key stages of proceedings.

Instances of non-compliance were higher with the latter rules compared with the former.

The BSB said compliance has reached a level that meant it would not conduct further large-scale spot checks but would continue to test compliance whenever it engaged with a chambers, entity or sole practitioner in its supervision work.

“It is now more than three years since the rules came into effect. Enforcement action will be taken in cases where practitioners and organisations continue to materially fail to meet the transparency requirements.”

The most common areas of non-compliance with the mandatory rules were failing to provide information about the factors which might influence the timescales of a case, a link to the BSB barristers’ register or a link to the public access guidance for lay clients.

When it came to the additional rules for public access, the main problems were around fee information and timescales.

These all mirrored the 2020 findings and indicated “that some improvement to the guidance is needed, which we shall be doing”.

The BSB review was concerned that transparency information was not easy enough to find on many websites – that is, within one or two clicks – and it encouraged “practitioners and organisations to think about how the required information can be provided more accessibly and without jargon”.

It also suggested that the difficulty with formulating case timescales led practitioners to make them overly wide, such as six months to two years for a particular matter.

“There was some concern that long timescales may be unhelpful or off-putting without being clearly explained.

“On the other hand, the research shows that complaints to the Legal Ombudsman about case timescales have reduced since the rules were introduced, which may indicate that setting realistic expectations, even with a wide timescale, may be more helpful than not.”

The BSB also reported that “a reasonable quantity” of marketing information on third-party websites marketing public access barristers was not compliant. Though not covered by the rules, the BSB said: “We think that there is an opportunity to further drive up transparency standards on such platforms.”

A separate study on the impact of the transparency rules – drawing on a range of sources – found that the proportion of clients who obtained details of service or price before choosing a barrister increased from 10% in 2019, to 23% obtaining details of services and 26% prices in 2021.

The percentage of clients ‘shopping around’ when choosing a barrister leapt from 7.4% in 2019 to 18% in 2021. Similarly, the proportion of clients obtaining prices from more than one barrister jumped from 6.4% to 20%.

Against these findings was the perception of the profession – the majority have not noted any impact on their clients since implementing the rules.

However, the number of complaints to the Legal Ombudsman about barristers has declined overall, and the proportion of them that relate to issues around transparency of price, timescales and services provided have fallen “significantly”.

The BSB said it was “difficult to confirm” that these shifts were solely as a result of the transparency requirements, but “the fact that many of the changes observed relate to aspects of transparency that were specifically covered by the rules themselves, suggests that the transparency requirements have at least in part driven the changes”.

The regulator laid out the next stage of its work on transparency. This year, it will launch pilots on digital comparison tools and unbundling “in order to understand whether and how such approaches can promote access to barristers’ services for consumers”, and within them whether there is a need for further interim guidance on how to share information with marketing platforms.

Next year, it will consider whether there is evidence to go further in the transparency requirements in any area of practice.