Regulatory changes and new opportunities: What the new BSB Handbook will mean for you Ewen Macleod Head of Professional Practice Bar Standards Board

Overview New structure and approach Key changes in new Code of Conduct Key enforcement changes New approach to supervision Entity regulation Next steps

BSB Handbook –Introduction –Code of conduct You and the Court Behaving ethically You and your client You and your regulator You and your practice –Scope of practice, authorisation and licensing –Qualifications (yet to be reviewed) –Enforcement –Definitions

The Code of Conduct 10 core duties –Core elements of professional conduct that apply to all barristers (and others) Outcomes –Descriptive, rationale for rules and aid understanding of rules and guidance; not mandatory but will be taken into account when considering breaches of the rules Rules –Supplementing core duties where specific rules necessary Guidance –Assists in the interpretation of rules, examples of expected behaviour etc (not mandatory)

The Core Duties You must observe your duty to the court in the administration of justice [CD1] You must act in the best interests of each client [CD2] You must act with honesty and integrity [CD3] You must maintain your independence [CD4] You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession [CD5] You must keep the affairs of each client confidential [CD6] You must provide a competent standard of work and service to each client [CD7] You must not discriminate unlawfully against any person [CD8] You must be open and co-operative with your regulators [CD9] You must take reasonable steps to manage your business, or carry out your role within your business, competently and in such a way as to achieve compliance with your legal and regulatory objectives [CD10]

Some key changes All core duties to apply to unregistered barristers when providing legal services –Trust and confidence and co-operation with regulators apply at all times –Also need to provide information to clients Associations and premise sharing –generally relaxed; but novel business arrangements can’t circumvent the regulatory requirement / outcome and especially not confuse clients

Reporting certain matters to the BSB: –includes serious misconduct by self and others –Exemption for barristers working on Ethical Helpline Chambers admin: –Appoint someone to liaise with BSB –Members to take (reasonable) personal responsibility –No appointment of person disqualified by BSB –Requirement to have risk management arrangements in place Option to apply for authorisation to conduct litigation

Further areas of clarification Referral fees Not misleading clients Accepting and return of instructions Non-discrimination and cab-rank rules Ceasing to practice Client money Insurance

Enforcement changes Admin sanctions available for breach of any rule – Power to impose rests with PCC (can be delegated to staff) – Max fine increased to £1,000 for individuals ‘Professional misconduct’ will be a breach not appropriate for NFA or admin sanctions and referred to a disciplinary tribunal New enforcement policy

Enforcement changes Disqualification powers: – Where breach caused and in public interest to prevent them working for a BSB regulated person – Requirement to seek BSB approval before employment – Only DT (or interim panel) could impose – May apply to us to have it lifted Interim suspension and disqualification panels: – PCC’s powers enhanced – Triggers for referral and powers available widened – Immediate interim suspension powers

Supervision Recently consulted on proposals for risk-based approach to supervision; Whilst the current focus is on Chambers/entities – risk based supervision extends to other areas of regulation – CPD, QA of education providers; All supervision of the practising Bar consolidated within single department; Risk assessment framework will be a fundamental tool in determining supervision priorities; Key part of proposals to become an entity regulator; On-going supervision of all sets of chambers and new entities (rather than one off spot checks); Consideration of evidence from wide range of sources (all BSB departments, LeO and specific evidence gathering);

Supervision cont. Greater priority given to higher risk sets of chambers or higher risk areas through thematic reviews; Supervision v enforcement – a focus on early, constructive engagement rather than punishment; Only persistent or very serious non-compliance referred for enforcement; Supervision to be available for individuals instead of, or following, enforcement action.

Regulation of entities BSB will regulate entities where generally: o The services are the same as those permitted to be provided by the self-employed Bar under BSB regulation (option to include litigation) o All owners with material interest are also active managers of the entity (managers / owners must be natural persons) o A majority of an entity’s managers are entitled to practise as advocates with higher rights (but need not all be barristers) o Restrictions on non-lawyer owners and management (ABS only) o Discretion over the application of these principles, subject to risk assessment Aim is to be low risk and draw on the capacity and capability of the BSB; and Be flexible in adapting to changes in the market

Regulation of entities (2) New Handbook proposes new duties for managers of entities and authorised persons who work in them (rules similar to those for self-employed barristers) Cab rank rule to apply in a similar way as to individuals (named advocates) Specific HOLP and HOFA duties Duty to ensure all employees do nothing that causes or contributes to a breach of the Handbook

Next steps LSB considering Handbook application for individuals (decision due early July) Next application (non-ABS entities) submitted following that decision – decision due Sept? Both due to go live January 2014 ‘Licensing authority’ application submitted after entity decision (aim to regulate ABSs in 2014)

Any questions?