Barristers fail to comply with BSB transparency rules

In July of last year, the Bar Standards Board (BSB), published its new transparency rules, along with guidance to ensure that those within the profession understood and complied with them.

The changes were made in response to recommendations of the Competition and Markets Authority (CMA). As such, the rules outline that chambers, self-employed barristers, BSB-regulated entities, must publicly publish specific information about their services. This includes information about services provided and pricing models.

Nevertheless, the rules were not without criticism, with both the Bar Council and the Legal Services Consumer Panel (LSCP) initially raising concerns on both sides of the spectrum. Despite this, the Legal Services Board (LSB) approved the rules, and barristers had until January 2020 to become fully compliant.

However, a recent compliance review by the BSB, has found that the majority barristers are still failing to fully comply.

New BSB transparency rules

Back in 2016, the CMA conducted a market study into legal services. From its research it concluded that a number of changes needed to be made. This included implementing improved transparency standards, better data accessibility, providing more information to assist customers, and the promotion of independent feedback platforms.

A number of consultations by the BSB followed in both 2017, and 2018, after which, the board drew up its new transparency rules, which would apply to self-employed barristers, Chambers and BSB entities. Speaking about the new rules, which came into force 1 July 2019, Ewen MacLeod BSB Director of Strategy and Policy, said the new rules would help the public: “Make more informed decisions before engaging a barrister”.

The BSB stipulates that those to whom the rules apply, must:

• State their most commonly used pricing models, such as fixed fee or hourly rate
• State they can be contacted for a quotation for legal services
• Provide accurate contact details
• State the areas of practice in which they most commonly provide legal services
• Provide a description of their most commonly provided legal services, so clients can understand their expertise
• Provide information on the different factors which might influence the timescales of their most commonly provided legal services
• State that they are regulated by the BSB in text on their homepage
• Provide link to the decision data on the LeO’s website
• Provide link to the Barristers’ Register on the BSB website

Accompanying this was a deadline of January 2020, by which time barristers had to fully comply.

Backlash from the LSPC and Bar Council

Back in 2019, the BSB transparency rules faced backlash from both the LSCP and the Bar Council. 

The Bar council expressed that it was unhappy with the transparency rules around pricing. It also raised “significant concerns” relating to the evidence used to support the changes. This evidence was collated in the BSB’s September consultation Paper. Specifically, the Bar Council doubted the accuracy of the pilot study.

Speaking on this, it said: “The pilot study is based on a sample of only nine businesses, comprising barristers’ chambers, entities and sole practitioners, and samples of only 35 clients’ views.These samples are too small to be statistically significant and we do not think meaningful conclusions can be drawn from them”.

The Bar Council also highlighted that it believed the rules relating to “commonly used pricing models,” could lead to confusion on part of potential customers. Additionally, it argued that the requirement to include links to both Legal Ombudsman’s decision data, and the BSB’s register of barristers, disadvantaged barristers.

On top of this, it questioned the impact of requiring barristers to publicise prices: “Concerns have been raised with us that the requirement for barristers to publicise prices for work that they do not consider to be standardised would lead to a reduction in the number of practitioners who would be willing to do public access work. This would have a knock-on effect on access to justice for prospective clients”.

In contrast to the Bar Council’s perspective, prior to the rules being submitted to the LSB, the LSCP stated that the rules were “unlikely to go far enough”. Sarah Chambers, LSCP’s Chair, stressed the importance of providing clarity and transparency in relation to information on prices, services and quality, and argued that the current consumer perception that legal services are “unaffordable,” acted as a barrier. She stated that this perception was “reinforced” by a lack of access to up-front information on prices.

Further to this, the panel expressed that it was “disappointed” that the BSB did not appear to stress the need for “greater transparency” around information on costs, quality and services.

In spite of these criticisms, the LSB approved BSB’s transparency rules, and described them as an “adequate starting point”. That being said, it noted that it hoped those “regulated by the FO” would  “go beyond this”.

Barristers fail to comply

Unfortunately, the LSB’s expectations have not been met. In a recent review of the transparency measures, the BSB found that only 37% of barristers were fully compliant with the new transparency rules. In addition to this, the report stated that only 38% were partially compliant, and 25% were not compliant at all.

It also released its findings on the availability of pricing information on Chambers’ websites since 2017. The review found that 31.9% now have numerical information on fees, while 23.7% had detailed information on how fees were calculated, and 23.4% had basic information on how fees were calculated. A total of 21.1% had no information on the cost of services, or how fees were calculated.

Commenting on these numbers, the BSB said: “We are encouraged that 75% of those assessed during our review were found to be either compliant or partially compliant, which represents good progress. However, we recognise that there is more work to be done to ensure that everyone is compliant”. It added: “While we strongly prefer to continue to ensure compliance through constructive engagement, especially at this very difficult time for the Bar, those who do not engage with us to take corrective action, where it is needed, are likely to be referred for possible disciplinary action”.