Retainers and novel fee arrangements Top of Form Introduction The PSC (Professional Standards Committee) and PCCC (Professional Conduct and Complaints Committee) are sometimes asked to consider the propriety of "retainers" or other novel fee arrangements, particularly in relation to problems of conflict of interest in appearing against the party paying the retainer. On analysis, many of the problems stem from the fact that there is no definition of "retainer" (for example, in the Bar Council's standard-form Contractual Terms and CFA, it appears to be used simply to mean a barrister's agreement with a solicitor to provide legal services). To avoid issues of terminology, we have set out below the various types of arrangement that are sometimes called "retainers", and may give rise to problems in practice, together with our views on the answers to those problems. Payments giving the client a "call option" on the barrister's services and barring him from appearing against that client This is the traditional type of retainer, abolished in the 1980s but now apparently creeping back. In our view: A "general retainer" (whose effect is that the barrister is debarred from acting against that client in any matter, whether or not he has received instructions to act for him in a particular case) will usually be bad: a. because, in the absence of a true conflict, it is an affront to the cab rank rule, and to the free availability of legal services; b. because the barrister will be receiving a payment, but not providing any legal services in return. A "special retainer" (debarring the barrister from accepting a brief from any other party in a particular case) is likely to be subject to the same objections, at least up to the time when instructions are received. Payments in the nature of "booking" fees Whether it is permissible to charge a "booking" fee depends on what is meant by a booking fee in any particular case. Para 405 of the Code of Conduct provides that a self-employed barrister may charge "for any work undertaken by him" on any basis or by any method he thinks fit provided that such basis or method is permitted by law and does not involve the payment of a wage or salary. Where it is proposed to charge or incur fees before work has been undertaken, the question whether the arrangement is permissible will depend on whether the fee can be said to be incurred on account of work undertaken or to be undertaken.
Retainers and novel fee arrangements Top of Form Introduction The PSC (Professional Standards Committee) and PCCC (Professional Conduct and Complaints Committee) are sometimes asked to consider the propriety of "retainers" or other novel fee arrangements, particularly in relation to problems of conflict of interest in appearing against the party paying the retainer. On analysis, many of the problems stem from the fact that there is no definition of "retainer" (for example, in the Bar Council's standard-form Contractual Terms and CFA, it appears to be used simply to mean a barrister's agreement with a solicitor to provide legal services). To avoid issues of terminology, we have set out below the various types of arrangement that are sometimes called "retainers", and may give rise to problems in practice, together with our views on the answers to those problems. Payments giving the client a "call option" on the barrister's services and barring him from appearing against that client This is the traditional type of retainer, abolished in the 1980s but now apparently creeping back. In our view: A "general retainer" (whose effect is that the barrister is debarred from acting against that client in any matter, whether or not he has received instructions to act for him in a particular case) will usually be bad: a. because, in the absence of a true conflict, it is an affront to the cab rank rule, and to the free availability of legal services; b. because the barrister will be receiving a payment, but not providing any legal services in return. A "special retainer" (debarring the barrister from accepting a brief from any other party in a particular case) is likely to be subject to the same objections, at least up to the time when instructions are received. Payments in the nature of "booking" fees Whether it is permissible to charge a "booking" fee depends on what is meant by a booking fee in any particular case. Para 405 of the Code of Conduct provides that a self-employed barrister may charge "for any work undertaken by him" on any basis or by any method he thinks fit provided that such basis or method is permitted by law and does not involve the payment of a wage or salary. Where it is proposed to charge or incur fees before work has been undertaken, the question whether the arrangement is permissible will depend on whether the fee can be said to be incurred on account of work undertaken or to be undertaken.