Working in only one capacity at the same time on the same matter

Working in only one capacity at the same time on the same matter.

Potential regulatory issues arise where the barrister works on the same matter in more than one capacity. Firstly, the potential for client confusion is self-evident. Secondly, in many circumstances it is unlikely to be in the best interests of the client.

The Bar Standards Board considered prohibiting a barrister from acting in more than one capacity in the same matter, but in the event has decided that such a prohibition would not be proportionate. A barrister licensed to carry out public access work may give preliminary advice as a self-employed barrister and subsequently (subject to his doing so being in the client’s best interests) may refer the matter to the law firm which employs him when the matter becomes litigious, so that the client can have the benefit of the firm’s resources in the litigation, with the barrister conducting the litigation in his or her capacity as an employee or manager of the firm (or working under the supervision of the person doing so). There will be some circumstances where it may be appropriate for a barrister to act in more than one capacity at different stages of the case. For example, the barrister may work on the case whilst employed by the solicitors’ firm, but subsequently the firm may wish to instruct him as a self-employed barrister as advocate at trial. Such an arrangement has the advantage, from the client’s perspective, that the client does not pay the firm’s overheads when the barrister is carrying out work that can be done on a self-employed basis but does so only when the barrister’s role involves work of a sort that can and should properly be done in their capacity as a manager/employee of the firm.