Public access barristers could be allowed to accept direct instructions from clients eligible for legal aid, under proposals being considered by the Bar Standards Board.

Currently Rule 3(1) of the Public Access Rules prohibits barristers from accepting direct instructions from a lay client who may be eligible for public funding but has indicated that they will not seek it.

But since the Public Access Rules were amended in March 2010 to permit barristers to take on criminal and family law cases, some barristers have asked for the prohibition to be lifted.

In a letter sent to chambers last month consulting on the proposed change, the BSB said: ‘It has become apparent that the Bar Council, the Criminal Bar Association and a number of criminal practitioners… believe very strongly that this rule should be changed.'

It said that in the criminal field, in particular, there are clients who are entitled to public funding but for whom it would be a ‘rational decision’ not to seek it, and to instruct a barrister privately under the public access scheme.

The BSB said this would be the case where a person will be entitled to legal aid, but if it is granted, they may have to make a contribution under the rules that will exceed what they would have to pay a barrister alone under the public access scheme.

The regulator said the current restriction was ‘at odds with issues of client choice and access to justice’.

But it added that in reaching a decision ‘all of the regulatory objectives must be considered, and the BSB must ensure any amendments to the code of conduct offer consumers sufficient protection and put consumers in the position to make informed choices about quality, access and value’.

A working party, chaired by Christopher Gibson QC, will consider the matter and report to the BSB in mid-September.