Recently, there has been considerable discussion about whether BPTC/BVC graduates, who have been called to the Bar of England & Wales by an Inn of Court but have not completed pupillage, can hold themselves out as ‘Barristers’ outside of England & Wales. (In particular, in Bangladesh) Prima facie, they cannot do so whilst providing legal services, as they do not have practicing certificates in the UK and may mislead their clients as a result. In fact, if an ‘unregistered barrister’ (as Barristers without practicing certificates are officially known in the Bar Standards Board [BSB] Handbook) provides restricted legal services, such as appearing before an English court, whilst holding themselves out as a Barrister, they may be charged with a criminal offence under s.12 of the Legal Services Act 2007.
However, my reading of the most recent version of the BSB Handbook (as amended in April 2015), allows limited scope for unregistered Barristers who practice exclusively outside of England & Wales, to hold themselves out as Barristers. rC144.1 of the BSB Handbook requires an unregistered barrister, who provides legal services, to inform their client that they are not acting in the capacity of a practicing Barrister (i.e. they can’t hold out as being a Barrister). rC145 provides certain exceptions to rC144 and effectively exempts certain categories of unregistered Barristers from the requirements of rC144 as well as a few other regulations under the BSB Handbook. These categories are set out in rS13-rS15. rS13 clarifies that if an unregistered barrister is practicing as a foreign lawyer and doesn’t give advice on English law or supply legal services in connection with proceedings in England and Wales, then rC144 does not apply to them. In other words, they are not strictly required to inform their clients that they are not acting in the capacity of a practicing Barrister, if they are, for instance, advising on Bangladeshi law or with regard to a Bangladeshi suit. Instead, they are bound by the Bar Council/Legal Professional Authority of the country that they are practicing in. (rC13)
I should add that the term ‘legal services’, in itself, has a restricted meaning. At the Definitions section of the BSB Handbook, it is stated that legal services doesn’t include sitting as an arbitrator or working as a law lecturer. Therefore, if an unregistered Barrister is not providing legal services and is working as a law lecturer, for example, they can still hold themselves out to be a Barrister.
To take a more purposive approach to these rules and guidelines – the BSB issued them with the purpose of not misleading clients. So, the question is, are Bangladeshi clients being misled by unregistered Barristers who hold themselves out as Barristers whilst practicing in Bangladesh?
I would argue that they are not.
The Bangladesh Legal Practitioners and Bar Council Order, 1972 does not define ‘Barrister’, though it is used as a term throughout the Order re: eligibility for enrollment as advocates, exemption from the pupillage requirement and so on. In practice, the only document supporting a candidate’s claim that he/she is a Barrister, that is required by the Bar Council at the time of enrollment, is an attested copy of the candidate’s Call to the Bar certificate. (The Bangladesh Legal Practitioners and Bar Council Rule, 1972, Rule 60(1) and the Form pursuant to it) He/she is not required to provide a copy of his/her UK practicing certificate or any other evidence that he/she has completed pupillage there.
At the end of the day, even with a ‘Barrister’ title, a lawyer is required to enroll as an Advocate with the Bangladesh Bar Council. So, in terms of rights and obligations towards Bangladeshi clients, both Barristers and Advocates are on the same boat.
[The views expressed in this post are strictly my own and does not constitute an authoritative reading of the BSB Handbook’s provisions]