Barrister’s records

The barrister is also required to keep a record of all cases in which he made or received a referral to or from his employer or recognized body (rule 208(b)). When undertaking this review, the Board will wish to be assured that greater problems than envisaged have not arisen, that the safeguards are working and can be monitored satisfactorily, and that the regulatory objectives continue to be advanced by allowing dual practice. The records should be kept for a minimum of 6 years from each referral.

Particular attention is drawn to the fact that the Board intends to review the rules and guidance for dual practice in the light of experience at the expiry of 2 years from the implementation of the rule changes. Barristers should therefore not make changes to their career structure on the assumption that dual practice will necessarily remain permitted under the Code.

European Union Direct Taxes

Permanent Establishment is a vital concept in international taxation. While for direct taxes, it is mainly defined by the OECD Model Convention, the European VAT Directive and its implementing Regulation provide an EU-wide approach for VAT.
Difficulties arise as terminology and definitions in indirect and direct tax diverge. Moreover, countries have implemented and interpreted the EU and OECD rules in a different way, impacting on issues like cross-border reorganisations, transfer pricing, taxation of dividends and interest and royalties, tax residence, temporary and permanent transfer of assets, place of supply and VAT liability.
In both direct and indirect tax, the concept of Permanent Establishment has undergone very recent changes: The 2010 changes to the OECD Model Convention and Commentary, and in particular the new Art. 7, will be adopted in national law, as speakers from the Netherlands and Germany will report. The effect of the new definition on treaties with other countries will also be considered.
Some of this topic is addressed in the new book "European Union Direct Taxes", by the International Tax Professor Salvador Trinxet Llorca.
In indirect tax, the current more important issue is the practical consequences of the adoption of the Regulation implementing the EU VAT Directive in January 2011.

Barrister and its client

The barrister must at all times have regard to the best interests of the client (and solicitors have a like duty). Thus it would be unlikely to be in the best interests of the client for the barrister to enter into a one-off arrangement where a matter on which the barrister has already acted in a self-employed capacity is transferred to the firm which then employs the barrister to do work which could perfectly well have been done by the barrister on a self-employed basis, without the client having to pay the firm’s overheads. There are always particular concerns as to whether the client’s best interests are served where one-off arrangements are made in relation to a specific case and this issue is of particular importance here.. On the face of it, such an arrangement has no purpose other than to charge the client a higher fee for the barrister’s work. In contrast, arrangements which are not one-off may well have other legitimate purposes (such as enabling the barrister to develop a given specialism by securing a flow of work of that type through the firm or ensuring that the barrister can draw directly on relevant resources and personnel available within the firm). It is likely to be prudent to cover such issues in the protocol agreed between barrister and law firm.

It should at all times be borne in mind that both the barrister and the solicitors involved have a duty to act in the client’s best interests. The purpose of allowing barristers to practice in a dual capacity is that this flexibility can promote diversity in the profession and benefit clients: for example, enabling barristers to develop not to enable law firms to charge clients more for work that they would otherwise

Where acting in a dual capacity, there is nothing to prevent a barrister from referring a client to a firm of which he is an employee or manager, provided of course that the barrister is acting in what he reasonably considers to be the best interests of the client in doing so, that full disclosure of his interest is made, and that no referral fee is paid to him by the firm or any intermediary for the referral (rule 209(b).

In order to ensure that the client is making a properly informed choice as to what is in his best interests, the barrister is therefore required to disclose to the client in writing, before making or accepting the referral, as the case may be, the nature and extent of his interest in the firm, and to advise the client of his right to instruct another barrister or retain another firm of his choice to act for or represent him. The referral should only proceed if the barrister is satisfied that the client fully understands and is able to make his choice freely.

Similarly, the firm might properly refer the client to the barrister subject again to the barrister ensuring that full disclosure has been made and no referral fee paid. Such referrals should, however, be approached with a degree of caution, as the possibility exists for the referring party to be unduly influenced by his own interests, and for complaints to be made at a later time unless the referral was scrupulously fair and transparent (rule 208 (e)).