Barristers would be able to sue solicitors for unpaid fees under proposals published by the Bar Council last week to put the relationship between the two professions on a more commercial footing.

The consultation proposes the introduction of new legally binding contractual terms to govern the relationship between self-employed barristers and solicitors in private work.

Law Society president Robert Heslett warned that he had ‘significant concerns’ that some of the terms could disadvantage solicitors.

The proposed contractual terms would set out the basic legal obligations and responsibilities of both parties, dealing with matters including the proper and prompt execution of work, and creating liability for the payment of fees with a clear means of enforcement.

The contract would also facilitate dispute resolution by way of a voluntary joint tribunal, if the parties preferred not to go to court.

The terms, which have been the subject of debate between the two branches of the profession for over a decade and would need to be approved by the Legal Services Board, were drawn up by the Bar Council’s implementation committee. While barristers and solicitors will continue to be free to agree terms, it is envisaged that these new contractual provisions will be used as a default in cases where alternative terms have not been agreed.

At present barristers are instructed by solicitors on non-contractual and non-enforceable terms. The only actions that barristers can take against defaulting solicitors are to make a complaint to the Solicitors Regulation Authority or seek to have the solicitor put on the Bar Council’s Withdrawal of Credit Scheme (WCS), which means barristers cannot accept instructions from them unless payment is made in advance.

The Bar Council proposes abolishing the WCS and creating an advisory list of defaulting solicitors, which will list solicitors on the abolished scheme together with those who fail to comply with judgments obtained by a barrister for outstanding fees, or who fail to pay any award made by a voluntary joint tribunal.

Bar Council chairman Nick Green QC told the Gazette he did not expect the changes to lead to a flood of litigation against solicitors.

Heslett welcomed the consultation, but said he had ‘significant concerns’ that the terms as drafted would disadvantage solicitors. In particular, he was concerned about the proposal to amend the cab-rank rule to permit barristers to refuse an instruction if it is not on the basis of the new contract terms.

Heslett said solicitors should retain the right to come to individual arrangements with barristers rather than having default terms ‘imposed’, which he said could be contrary to competition law.

‘There may be other terms solicitors want to see introduced into contracts with barristers, such as no unapproved change of the barrister instructed, or non-compete clauses,’ he added.