Yes, absolutely! And if you are not happy, you should. Don’t worry about hurting your barrister’s feelings: we are professionals. Sometimes the barrister is not the right fit, or if you feel that you are not receiving the service you want, you should feel free to discuss this with your barrister. As barristers are heavily court based they are not able to respond with the same regularity and speed as solicitors who are more office based can, and it may be that you need more support than the Direct Access scheme can offer. I find the key is to manage clients’ expectations, and make it clear what we realistically can and cannot do. This should be a conversation you can have with your barrister quite readily, and one of the things you should ask when you first meet your barrister. Most issues can be dealt with satisfactorily by having an early conversation about what is realistic and what your expectations are.
One word of caution though: don’t change your barrister just because you don’t like the legal advice you are getting.
Once we have represented you, or met with you, we cannot then represent the other side. We would then have what is called a ‘conflict of interest’ as we would know information about your case which may prejudice your case. Members of the same family or barristers who are married are not allowed to appear against each other unless both parties give permission. One of the things that people often find curious about barristers is that whilst we are in the same chambers, often friends with those whom we appear against, we have to take opposing stances against each other. This is the nature of the job and something which comes quite naturally to us. We take our responsibilities to our clients very seriously and frequently we have to come up against a friend or colleague and will fall out with them if necessary! Most of the time though it actually works to your advantage as barristers who have a good working relationship with each other are usually more able to work collaboratively towards a mutually agreeable solution.
Anything you tell your barrister is what is termed ‘privileged’ and cannot be disclosed to the other party without your consent. There is a slight tension between this and what is termed your ‘duty of disclosure’ in that you cannot withhold from the other party relevant documentation, even when it is prejudicial to your case. This is one of the reasons you need help from a lawyer as it is often difficult to know what is and what is not relevant. The rule of thumb is, when in doubt, disclose it!
There may be a time also when your barrister is not available for a court date and he or she will usually be more than happy to recommend someone else to take over your case or conduct that hearing on your behalf. However, the Courts are very supportive of the Direct Access system where possible and will, where they have sufficient notice of your barrister’s dates of unavailability, list the hearing when your direct access barrister is available. You can obtain a list of the unavailable dates from the direct access clerk at the barrister’s chambers and they will usually (ours do) send the dates to the right department in the court office for you.
One word of caution though: don’t change your barrister just because you don’t like the legal advice you are getting. Sometimes the right advice is difficult to hear and will not accord with what you think should be a fair outcome, or be what you want to happen. Get a second opinion by all means, but beware chopping and changing just because you don’t like the advice you are being given. It is easy to promise the earth and then not be able to deliver, by which time you are out of pocket and have achieved nothing. It is much more difficult to give the right advice. Would a barrister have a clue how to do your job? Your barrister’s experience and judgment are what you are paying for.
Posted on May 21, 2018