Conditional Fees: The Ethical and Organisational Impact on the Bar
| Author | Peter Kunzlik |
| DOI | http://doi.org/10.1111/1468-2230.00241 |
| Date | 01 November 1999 |
| Published date | 01 November 1999 |
Conditional Fees: The Ethical and Organisational Impact
on the Bar
Peter Kunzlik*
Introduction
Lawyers are currently facing momentous change; a revolution in civil procedure,1
the end of the practising Bar’s monopoly over higher rights of audience,2the
possibility of direct governmental interference in the self-regulatory role of the
professional bodies;3the extension of conditional fee agreements (‘CFAs’);4and
the reform and retrenchment of legal aid.5Each will have a major impact on the
ßThe Modern Law Review Limited 1999 (MLR 62:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
850
* The Law School, The Nottingham Trent University.
I am grateful to John Peysner, Michael Gunn and Mary Seneviratne for comments on earlier drafts of this
article. Sole responsibility for the views expressed and for any errors and omissions remains my own.
1
The Civil Procedure Rules 1999 herald ‘the beginning of . .. the most fundamental change to the
civil justice system since the reforms of Lord Selborne in the 1870s’: Lord Irvine of Lairg LC’s
foreword to the Rules. See also Geoffrey Hoon MP, Minister of State at the Lord Chancellor’s
Department, ‘Modernising Civil Justice’ (1998) 7 Nott LJ 11; A. Zuckerman and R. Cranston
(eds), Reform of Civil Procedure-Essays on ‘Access to Justice’ (Oxford: Clarendon Press, 1995);
M. Zander, ‘The Woolf Report: Forwards or Backwards for the new Lord Chancellor?’ (1997) 16
CJQ 208; Lord Woolf, ‘Medics, Lawyers and the Courts’ (1997) 16 CJQ 302; M. Zander, ‘Woolf
on Zander’ (1997) 147 New LJ 767; A. Zuckerman, ‘A Reform of Civil Procedure – Rationing
Procedure rather than Access to Justice’ (1995) 22 J Legal Stud 155; I.R. Scott, ‘The White Paper
on Legal Services’ (1990) 9 CJQ 6; and M. Zander, ‘The Green Papers and Legal Services’ (1989)
52 MLR 527.
2 The Government will ‘sweep away the unjustified restrictive practices that prevent most qualified
lawyers from appearing before the higher courts’: Modernising Justice, Cm 4155 (1999) 19. Thus the
Access to Justice Act 1999, ss 36–38, provide that every barrister and solicitor (whether in private
practise or employed) is to have a right of audience ‘before every court in relation to all proceedings’
subject to the regulations and rules of conduct of the Bar Council and Law Society respectively, such
rights being ‘portable’ when a lawyer transfers from one authorised body to another (s 39). In addition
s 41 and Sched 5, para 6 will make it easier for the Lord Chancellor to authorise new bodies to grant
rights of audience since they dispense with the requirement that he obtain the approval of the
Advisory Committee on Legal Education and Conduct (‘ACLEC’) and of the designated judges and
merely require him to ‘consider’ the advice of a new Legal Services Consultative Panel (replacing
ACLEC), the Director General of Fair Trading and the designated judges.
3
The Access to Justice Act empowers the Lord Chancellor (after consultation) to make orders altering the
qualification regulations or rules of conduct of the authorised bodies if he considers that they may
‘unduly restrict a right of audience . . . or the exercise of such a right’: s 41 and Part III of Sched 5.
Authorised bodies will thereafter either conform to government policy or risk interference in a central
area of their self-regulatory function; see Lord Irvine, HL Deb col 1111 14 December 1998.
4 See M. Zander, ‘The Government’s Plans on Civil Justice’ (1998) 61 MLR 382; M. Zander, ‘The
Government’s Plans on Legal Aid and Conditional Fees’ (1998) 61 MLR 538; Lord Ackner,
‘Conditional Fee Agreements’ (1998) 148 New LJ 477; V. Chapman, ‘Extending the use of
conditional fees’ Legal Action, April 1998, 6; and I.R. Scott, ‘The Green Paper on Contingency Fees’
(1989) 8 CJQ 97.
5 Part I of the Access to Justice Act proposes replacing the traditional legal aid system with a
Community Legal Service and a Criminal Defence Service, both managed by a Legal Services
Commission . The Commission will have a duty to provide or procure a range of legal services ‘in a
way which reflects priorities set by the Lord Chancellor and its duty to secure the best possible value
for money’ (see the original Explanatory Note to the Bill, Section A, especially paras 9 and 10). So far
as civil litigation is concerned, the Community Legal Service will be funded by means of a
Community Legal Service Fund but this ‘will not be an open-ended fund, as the legal aid fund is now’
since s 5 of the Act, which provides for the Fund, provides that the Lord Chancellor will fix its budget
and this will, in practice, be done ‘as part of the general public expenditure planning process’ (the
original Explanatory Note, para 68).
legal profession. This article focuses on one aspect of these reforms, examining the
ways in which the extension of CFAs and the corresponding retrenchment of civil
legal aid will require fundamental change to the Bar’s ethical and organisational
framework. It will argue, however, that such change is, in any event, necessary if
the Bar is to adapt to the competitive environment that will emerge from the
current reforms generally. The need to adjust to the requirements of CFA practise
might, therefore, be an important catalyst to the process of transformation that the
Bar will have to undergo if it is to survive.
The ethics of the English Bar
It is not easy to assess the ethical impact of CFAs for the Bar because its ethical
framework has never been fully articulated6perhaps because, until recently, legal
ethics have not generally been the subject of systematic study in United Kingdom.7
Clearly, however, whilst the Code of Conduct of the Bar in England and Wales
(‘the Code’)8is not exhaustive of the ethical issues confronting barristers,9and
whilst several of its rules are co-extensive with duties imposed by the courts
(which therefore have legal as well as ethical weight),10 the Code must nonetheless
be our starting point. Professional codes can, however, serve ulterior purposes such
as restricting membership of the profession (protecting established practitioners
from competition from new entrants) and preventing internal competition between
those already established.11 It follows that, although the term ‘legal ethics’ is for
most lawyers ‘synonymous with their rules of conduct’,12 one cannot simply
assume a moral justification for every provision of the Code.13
As a result, if we are to ascertain the ethical framework of the English Bar, we
must distinguish between those provisions of the Code that are self-serving and
those that advance ‘moral’ values. Only the latter can be regarded as ethical. Thus
the economic self-interest of professionals in maintaining their monopolies, their
charging rates, or their opportunities to earn fees, cannot be so justified. Nor, given
the diverse nature of society, should one define what is or is not professionally
‘moral’ purely by reference to principles of religion, philosophy, or private
morality.14 Instead, one should ask whether the purpose of the rule is to advance
6 See L. Sheinman, ‘Looking for Legal Ethics’ (1997) 4 International Journal of the Legal Profession
139, 141.
7 For recent works on the subject, however, see K. Economides (ed), Ethical Challenges to Legal
Education and Conduct (Oxford: Hart, 1998); R. Cranston (ed), Legal Ethics and Professional
Responsibility (Oxford: Clarendon Press, 1995); and S. Parker and C. Sampford (eds), Legal Ethics
and Legal Practice: Contemporary Issues (Oxford: Clarendon Press, 1995). A helpful Commonwealth
perspective can be found in G. Dal Pont, Lawyers’ Professional Responsibility in Australia and New
Zealand (Sydney: LBC Information Service, 1996).
8 Adopted by the Bar Council on 26 September 1998, effective from 1 October 1998. As to the status of
the Code see A. Thornton, ‘The Professional Responsibilities and Ethics of the English Bar’ in
Cranston (ed), n 7 above, 77–97.
9 R. Cranston, ‘Legal Ethics and Professional Responsibility’ in Cranston (ed), n 7 above, 1, 4; and A.
Sherr and L. Webley, ‘Legal Ethics in England and Wales’ (1997) 4 International Journal of the
Legal Profession 109, 131 et seq.
10 Cranston ibid 2 and 3; and see n 44 below.
11 See R.L. Abel, ‘The Decline of Professionalism?’ (1986) 49 MLR 1, 16, 18,19 and 37. Abel identifies
the following as restrictive practices that the Bar has, at one time or another, adopted to limit internal
competition: the rule against partnership, requirements as to membership of a circuit and of chambers,
and the role of clerks. Competition between the older and younger cohorts at the Bar is seen as being
curtailed ‘by means of an artificial barrier, silk, which grants each a sub-monopoly’.
12 Sheinman, n 6 above, 142.
13 ibid.
14 Cranston, n 9 above, 5.
November 1999] Conditional Fees
ßThe Modern Law Review Limited 1999 851
To continue reading
Request your trial