BSB Transparency Rules: where do I start?

When you are a self-employed barrister or involved in the management of a BSB regulated entity or a chambers, your to-do list is ever growing. On an ever-growing to-do list there are always chores that you really don’t want to do or that get put off repeatedly – often until they become unavoidable. Does this sound familiar?

Compliance can be one of these ‘chores’, but don’t allow your regulatory obligations to slip as you do not want to have to handle an investigation by the Bar Standards Board or worse, a breach! It is better to make sure everything is order, before it gets to that point. The guidance in this blog and the free tool which you can download below will help to ease this burden. If you prefer, Beyond Compliance can take your compliance chores off of your to-do list, so you have one less thing to worry about.

Transparency

For a great example of the compliance rules ongoing development, we can take a look at one of the more recent addition to the BSB Handbook – the Transparency Rules. In 2016, after completing a study of the legal sector, the Competition & Markets Authority (CMA) recommended that transparency needed to be improved in relation to price, service and quality to help customers navigate the purchase of legal services better. The BSB introduced the transparency rules on 1 July 2019, with an implementation period until January 2020. These changes had the most impact on Public Access accredited barristers (those that deal directly with members of the public); however, there are mandatory rules which apply across the board.

All the transparency rules have now been reflected in the latest version of the BSB Handbook; the mandatory rules can be found from rC103-164 and the additional rules for public access barristers can be found at rC165 – rC169.

The BSB has also published Transparency Standards Guidance, which is made up of six annexes. These supplement the rules and provide further details and templates to assist members of the Bar. Despite this, it can still be difficult to manoeuvre the rules and understand what is needed, particularly without the time to complete an in-depth analysis of all the documents.

Regulation

The Solicitors Regulation Authority (SRA) began 2021 with a ‘clampdown’ on compliance when they sanctioned nine law firms for breaches of the transparency rules, in January alone. When they released this news, they confirmed that they were regularly checking law firms’ websites to guarantee compliance standards were being met[1].

Whilst the BSB has not commented on disciplinary proceedings, they warned in July 2020 that while they, ‘strongly prefer to continue to ensure compliance through constructive engagement, especially at this very difficult time for the Bar, those who do not engage…to take corrective action, where it is needed, are likely to be referred for possible disciplinary action’[2]. These comments came after the BSB completed a compliance review of 440 self-employed barristers, chambers and BSB entities and found that only 37%[3] of those that were assessed, were fully compliant. The BSB concluded their report by confirming that those who were found to be non-compliant during the review, will be re-assessed again in 2021.

Most recently the BSB announced within the monthly regulatory update for October 2021 that the previous approach of the BSB to non-compliance was taking a shift from ‘guiding and supportive’ to a tougher stance which will include enforcement action; particularly where practices continually fail to meet their regulatory requirements.

The BSB stated:

“A significant minority remain non-compliant. This is unacceptable – the profession has had ample time to comply with these rules, which are designed to improve the information available to the public. It is therefore right that our approach to non-compliance changes and we will take enforcement action where necessary to ensure compliance.”[4]

This indicates that the BSB will be taking non-compliance seriously. With that in mind, it is more crucial than ever, to now make sure that you, your chambers or BSB entity is compliant with the transparency rules.

As the transparency rules are a relatively new addition to the handbook, it may be that the update has been missed by some or it is still on that ever-growing to-do list. Nevertheless, they are mandatory and they do impact all barristers, chambers and BSB entities, some more than others.

Where DO I start?

The best place to start when considering the compliance requirements of the Bar, is the BSB Handbook. This covers most of the regulatory framework, detailing: the Code of Conduct; the scope of practice and authorisation and licensing rules; the Bar Qualification Rules and the enforcement regulations.

Outside of this framework, further consideration needs to be given to the following obligations under: the Data Protection Act 2018; the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017; the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013; and, the Provision of Services Regulations 2009.

Of course, all of these can be added to and updated over time, so it is imperative that any policies and procedures that are in place, are reviewed annually as a minimum.

Guidance

We have drafted a handy bite-size guidance note to help you start to tackle your transparency woes, which can be downloaded below. This guidance note sets out the minimum requirements for self-employed barristers, chambers and entities, in relation to the Transparency Rules.

There is no denying that the BSB regulations can be difficult to navigate; we are here to help. If you want us to tackle a compliance task on your behalf or you want to discuss a review and update of all your policies and procedures, you can contact us on: 0121 288 5227 or [email protected].

Chelsea Sparks, Compliance Consultant

A tool for your toolkit

We have created a Transparency Guidance Tool for you to use to help with assessing your own compliance which you can download for free by signing up here: