Bar Standards Board unveils 'blush test' as key plank of new guidance on chambers hospitality as senior Bar figures say the regulator has managed a deft balancing act. Claire Ruckin reports on the latest developments at the Bar

The Bar Standards Board (BSB) was surely taking a risk when it based its eagerly-awaited ruling on chambers hospitality on something as intangible as a blush.

But if the reaction of the legal profession is anything to go by, the BSB has been spared any blushes of its own following its unveiling of a new 'blush test' against which to measure whether chambers hospitality is over the top or not.

The test forms the central plank of a new set of guidelines on the offering of hospitality and gifts to solicitors that will be issued shortly to all sets of chambers by the BSB.

While barristers will be allowed to continue entertaining their clients, they will be warned that 'lavish' entertainment risks bringing the profession into disrepute.

When considering whether a piece of entertainment is justified, barristers will be invited to consider whether either party would be embarrassed to disclose it to colleagues, clients or regulators.

On that basis, a trip to a lapdancing club is, presumably, out, whereas canapes on the lawns of Middle Temple is most definitely in.

The new guidance is the brainchild of the BSB's 18-member Standards Committee, which is headed by Charles Hollander QC of Brick Court Chambers. The committee conducted its review of the hospitality rules in the light of what it described as the "large expansion in the use of entertainment by barristers to further their interests".

The review inevitably raised fears among chambers that the BSB was poised to issue new restrictions on the offering of hospitality to law firms. It certainly elicited a large number of responses – more than 60 from all sections of the profession, including Blackstone Chambers, Essex Court Chambers, 4 Pump Court and Wilberforce Chambers, as well as Gray's Inn, Lovells and the Solicitors' Regulation Authority, among others.

In the event, fears of a canapes clampdown proved unfounded. In its ruling on 22 June, the BSB justified its decision not to impose restrictions on hospitality on the basis that it had found no evidence of abuse or inappropriate behaviour.

Indeed, it even marginally relaxed the current rules preventing barristers from offering solicitors gifts – to the extent that barristers no longer have to ask their clients to return any branded stationary they may have pocketed by mistake.

Commenting on the ruling, the BSB's chair, Ruth Evans, said: "Excessively lavish entertainment intended to induce a solicitor to choose counsel having regard to anything other than the client's best interests would already constitute a breach of the existing rules under the Code of Conduct and those rules remain in place. Meanwhile, we recognise that there are legitimate reasons for client entertainment by barristers and sets of chambers."

In reaching its decision, the committee relied on evidence from a number of competition experts that the Bar risked contravening the Competition Act 1998 if it imposed any restrictions, given the lack of evidence that the current rules were being abused.

"The detailed consultation found there was no good reason to suggest there was any abuse going on or any reason to restrict what barristers were legitimately doing," said BSB director Mark Stobbs. "The aim is for the Bar to be able to compete, as long as it is in the public interest. The competition element is important as it means there is a level playing field where the Bar is allowed to choose precisely what it wants to do and how it legitimately does this."

Indeed, the BSB is at pains to point out that hospitality has its benefits. "Drinks parties and other chambers' entertaining often enables a solicitor to put a face to counsel the solicitor has not previously instructed and may be more willing even after a short conversation to instruct that counsel in future," it said. "This is particularly a way in which junior members of chambers may be introduced to solicitors."

In its response to the consultation, Lovells said it was important for barristers and solicitors to mix in an informal setting. "Hospitality can help solicitors get to know barristers and make a more informed choice, especially as to whether counsel will work well in the team," the firm argued. "Given that this firm deals with cases that can run for several years, it is not unusual that during such time solicitors and barristers may socialise together. We see nothing wrong with that. Restricting modern working practices is a backward step."

Simon Davis, Clifford Chance partner and president of the London Solicitors Litigation Association, welcomed the BSB's stance.

"It would have been unfortunate and unworkable if restrictions had been imposed," he said. "Unfortunate because it is in barristers' interests – particularly junior barristers – that solicitors have the opportunity to meet them, otherwise the juniors can be closeted away in chambers; and unworkable because the restrictions would have been extremely difficult to monitor."

Hardwicke Building head of chambers Nigel Jones QC also welcomed the ruling, describing it as "hugely encouraging".

"It is an excellent decision and a well-argued, thought-out report. It showed the Bar was plainly responding sensibly to it," he said. "The 'blush test' is a good way forward and precisely the right way of resolving the issue. We were nervous about it, for obvious reasons, but our set is both pleased and encouraged."

There have been mutterings in some quarters of the Bar that the BSB, which was established a year ago, has gone into regulatory overdrive in a bid to prove its mettle. Its decision not to impose restrictions on hospitality in the face of what many assume to be a number of complaints from more traditionally-minded barristers suggests that it is mindful of the need to allow barristers to compete effectively with solicitors.

One chambers that is set to benefit from the ruling is 11 KBW, which recently conducted a rebranding exercise to mark the 25th anniversary of the chambers, which was formerly known as 11 King's Bench Walk. As well as relaunching its website and running an advertising campaign, the chambers held a party at Tate Modern.

Lucy Chapman, head of marketing at 11 KBW, said: "We enjoyed sharing our 25th birthday party with our clients and received an overwhelming number of thank-you cards following the event.

"The reality is that chambers do need to market themselves in a competitive environment. Solicitors firms understand marketing and they market themselves to their clients in a sophisticated way. "

The BSB has just embarked on the first-ever review of the Bar rulebook, in which traditional sacred cows such as the 'cab rank' rule will come under scrutiny. Writing in Legal Week on 28 June, the BSB's Stobbs promised a "proportionate" set of rules that would strike the right balance between the interests of consumers, competition law and justice. This latter consideration suggests that anyone expecting a free-for-all may be disappointed.

As Brick Court's Hollander observes: "The difference between a business and the Bar is that the Bar is closely involved with the administration of justice. That distinction needs to be kept clear. Therefore, while it would be a mistake to go back to the days when any marketing would be seen as touting, you still cannot go too far."

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