Ethics guidance

Your client's right to complain when instructing barristers

Issued on 4 March 2014

Who is this guidance relevant to?

This guidance is relevant to all practitioners instructing barristers on behalf of clients. The intention is to remind practitioners of their professional duty to act in their client's best interests and to highlight the role practitioners play in ensuring that barristers are able to fulfil their obligation to notify the client of their right to complain.

Whilst this guidance does not form part of the Solicitors Regulation Authority ('SRA') Handbook, the SRA may have regard to it when exercising its regulatory functions.

Our concerns

In May 2010, the Legal Services Board ('LSB') introduced requirements under s 112(2) of the Legal Services Act 2007 on first-tier complaints handling (PDF 4 pages, 99K), setting out their expectations around complaint notification ('the signposting requirements'):

Approved regulators must require all individuals and entities they regulate to notify all clients in writing:

  1. at the time of engagement, or existing clients at the next appropriate opportunity, of their right to make a complaint, how and to whom this can be done (including their right to complain to the Legal Ombudsman ['LeO'] at the conclusion of the complaint process, the timeframe for doing so and full details of how to contact the Legal Ombudsman); and
  2. at the conclusion of the complaint process of their right to complain to the Legal Ombudsman, the timeframe for doing so and full details of how to contact the Legal Ombudsman
  3. .

These requirements are reflected in the SRA Code of Conduct 2011, as well as the Bar Standards Board ('BSB') Handbook.

Since the introduction of these requirements, the SRA has become aware that some clients are not being informed of their right to make a complaint about barristers. Although instructions to barristers often include client contact details, this is not always the case. Without these details, barristers are unable to fulfil their signposting requirements without further co-operation from the instructing practitioner.

The Principles

The most relevant SRA Principles in relation to the signposting requirements are Principles 4 and 6:

[4] You must... act in the best interests of each client.
[6] You must... behave in a way that maintains the trust the public places in you and in the provision of legal services.

The Outcomes

As well as the relevant Principles, you will also need to ensure that you achieve the outcomes relating to Client Care (Chapter 1), in particular that:

1.1 you treat your clients fairly;
1.2 you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice.

Our expectations

Practitioners play a fundamental role in instructing barristers on behalf of clients. The SRA expects the instructing practitioner to assist barristers so that they (i.e. the barrister) can be in a position to advise the client in writing of their right to complain about the service provided by the barrister. Alternatively, the solicitor should be satisfied that the client has been appropriately signposted.

This expectation protects the interest of the client and helps to ensure that barristers are in a position to comply with their own obligations.

Practitioners will be mindful of their obligations of confidentiality towards clients (both under law and the SRA Code of Conduct Outcome 4.1) and their obligations under the Data Protection Act 1998 ['DPA']. The nature of this co-operation will therefore depend on the particular situation and could include:

  1. with relevant consent of the client and where practitioners are satisfied it is in the client's best interests, providing client contact details (e.g. postal or e-mail address) directly to barristers; and/or
  2. forwarding Chambers' and LeO's complaint process information directly to clients (e.g. where the client does not consent to disclosure of their contact details or where practitioners are not satisfied that disclosure is in the client's best interests).

Having regard to these considerations, practitioners may find the easiest approach to manage the situation is to forward Chambers' and LeO's complaint details directly to their client when confirming to clients that a barrister has been instructed. Practitioners may always identify other mechanisms of ensuring that the client is provided with the necessary information which would ensure the signposting requirements have been satisfied.

For guidance relating to obligations under the DPA, practitioners may wish to contact the Information Commissioner's Office.

Regulatory action

Whilst we are committed to engaging with firms and practitioners, we will take appropriate regulatory action against those that fail to address the issues and risks associated with the signposting requirements where this is detrimental to the interests of clients.

Further help

If you require further assistance in relation to the signposting requirements, contact the Ethics Helpline.