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The present focus of the Bar Code is on the agreeing of fees between solicitor and
barrister. It requires barristers to be separately instructed and remunerated by a
separate fee for each item of work undertaken.
It deals with such matters as
marking the fee and refreshers on the brief, what the brief is deemed to cover, and so
forth. The solicitor undertakes a professional obligation to be personally responsible
for the barrister's fees whether or not he receives payment from the client
– a rule
reflecting the historical incapacity of the barrister to sue the client or the solicitor for
his fees.
A solicitor is also free to withdraw instructions from any particular
barrister. Accordingly, it is understandable that the Bar Code makes no provision for
disclosures or other fee-related dealings as between the barrister and the client. So
long as this arrangement continues, the duty to provide the client with the relevant
information must fall primarily on solicitors. It will be up to them to negotiate
barristers' fees on a satisfactory basis and to explain that basis to the client.
Notes
Bar Code §120.
Guide to Professional Conduct §12.04: "In the absence of reasonable excuse a solicitor is personally
liable as a matter of professional conduct for the payment of a barrister's proper fees. Failure to
obtain funds on account of a barrister's fees shall not of itself constitute reasonable excuse."
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