Commercial barristers are individual practitioners who are self-employed. Whilst they are sole traders, who operate independently, most operate from a set of chambers, in which a group of independent barristers have joined together to share premises and expenses.
Barristers are able to receive direct instructions from lawyers based outside the UK, and any foreign lawyer can instruct any barrister to advise, or to give an expert report or appear in any arbitration or other form of ADR. Barristers are also sometimes asked to give recommendations for a suitable solicitor to act as part of a wider team together with counsel, particularly in international litigation.
The instruction of commercial barristers is arranged through clerks in chambers. Barristers’ clerks manage the practice of individual barristers practising from the chambers and they will be happy to answer questions in relation to potential instructions. The clerks will be able to recommend individual barristers who are available and appropriate to work on the case, bearing in mind its value, subject matter and complexity. Barristers can be instructed alone or to form part of a team and their role can be tailored to meet the client’s requirements.
It is a feature of the Commercial Bar of England and Wales that self-employed barristers practising in chambers work independently of other members of their chambers. They are paid for the work they do; they do not share fees with other members of chambers; referral fees are forbidden; and they compete with each other for work. The Bar Standards Board (BSB) Handbook, which contains the rules about how barristers must behave and work, imposes core duties on barristers to maintain their independence and to keep the affairs of each client confidential. The BSB Handbook requires chambers to be administered to ensure the independence of individual members of chambers from one another. The separate and independent nature of practice in chambers enables and may require barristers from the same chambers to appear against each other in cases, The separate and independent nature of practice in chambers also enables barristers and arbitrators to practise from the same chambers without automatic or inherent conflict of interest.
In cases in which barristers in the same chambers appear for opposing parties, confidentiality walls will be put in place to ensure the confidentiality of each side’s information. The same applies in cases in which a barrister acts as an arbitrator and a barrister from the same chambers appears as an advocate in the same case. Barristers from the same chambers are frequently instructed by opposing parties in the same cases or in different capacities in the same case, and commercial chambers are experienced in establishing such confidentiality arrangements. The BSB Handbook requires procedures to be maintained by chambers to ensure the confidentiality of client affairs and to protect confidential information. The clerking team of the barrister that you are seeking to instruct will be happy to answer any questions that you may have in this regard.
As a result of the confidentiality arrangements that chambers are required to put in place, it is not permissible for barristers to check to see whether another member of chambers has previously been instructed by a particular client. Given the independent nature of barristers’ practice, any such prior instruction by a different member of chambers would not, of itself, give rise to any conflict of interest.
The Bar Council has confirmed (in its Information Note on barristers in international arbitration: https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/bc_information_note_-_perceived_conflicts_in_international_arbitration_-_060715.pdf) that good practice would dictate that in circumstances where a barrister comes to understand that he or she has been instructed in an arbitration where one or more of the members of the Tribunal are barristers in the same set of chambers, prompt disclosure ought to be made by those instructing the barrister advocate to the legal representatives of the other side. Upon learning that a barrister from their chambers has been instructed in the matter, a Tribunal member would in some cases be expected to disclose that fact to the parties. However, is not possible for barrister arbitrators (either prior to or following their appointment) to conduct enquiries as to the instruction of other members of chambers by particular clients. Such enquiries would contravene the confidentiality requirements imposed by the BSB Handbook.
Barristers also remain subject to obligations of confidentiality in respect of their clients, after their instructions have concluded. This means that confidential information in relation to previous clients cannot be divulged to new clients. This may include the fact that a barrister has acted for or against a particular party, or the scope or nature of the instructions received from that party.