This article quotes a fellow barrister as follows:
“For individuals without the assistance of a solicitor, determining which barrister to engage is a considerable challenge in the absence of an objective measure to guide them . . . It is inevitably almost impossible for a member of the public to make a fully informed decision. From the perspective of improved access to justice there is therefore much to be said for the introduction of a kitemark . . . [to] provide consumers with some reassurance that their chosen barrister satisfies independent standards of value and service”
I set out my thoughts on this proposal in bullet points below. It is important to preface the bullet points by stating that I do not know what process this barrister has in mind and thus some objections I have may not apply.
With this in mind I would make the following points:
1. The regulation of barristers by the BSB and Legal Ombudsman is a form of kitemark. Sanctions by the former and decisions by the latter are made public. It is almost inevitable that barristers who are routinely incompetent or unethical will face a sanction.
2. It is possible that the kitemark may require the barrister to subscribe to a particular ideology. This applies, in my opinion, to the title (which could also be described as a kitemark) ‘KC’, whereby applicants must demonstrate a commitment to ‘diversity’.
3. If the kitemark were based on results, then this could encourage unethical behavior such as refusing weaker cases or pressuring clients to settle. Consider for instance, instances of the Police Force not recording crime to manipulate their statistics or schools simply not entering weaker candidates for GCSE exams.
4. Depending on who is involved in the introduction of the kitemark system, there could be conflicts of interest, if for example judges or other lawyers are involved.
5. Direct access clients can base their decision to instruct on their communications with the relevant barrister. They are likely to be reassured if their case has been explained to them in a way that was easy for them to understand. This sense of re-assurance would be reasonable because within most areas of expertise, the more competent expert can explain esoteric concepts in a way that can be easily understood. It is usually the less competent experts who provide explanations that appear to be abstruse and verbose.
6. Irrespective of whether 2 -4 above apply, in light of 1 and 5 above, I do not consider any kitemark to be necessary. If there were to be a kitemark then I would suggest some form of examination, as I think this would be the most objective method, although not entirely without subjectivity.