Ewen Macleod`s slides

Regulatory changes and new
What the new BSB Handbook will mean
for you
Ewen Macleod
Head of Professional Practice
Bar Standards Board
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
• 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
• Option to apply for authorisation to conduct
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
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
• Recently consulted on proposals for risk-based approach to
• 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
• 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
• Supervision v enforcement – a focus on early,
constructive engagement rather than
• 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
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
Any questions?

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