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Monday, 17 December 2007

The Size of the Bar

TB and MP (I am trying hard not to notice that these initials almost always spell trouble one way or another) have been engaging in some discussion on the post below. It has, frankly (as LawMinx has said), degenerated into handbags at dawn but I reckon that is inevitable when people are both cross and anonymous - the combination does have a tendency to free you up to speak in a way that you otherwise might not.

However, the points raised are important and I want to deal with one of them which touches directly on the purpose of this blog; namely the size of the Bar.

On this matter my sympathies are entirely with TB, which will come as a shock to us both. I am afraid that I believe the Bar will contract - largely, although not exclusively in London, and by perhaps 30%. The reasons are many but two stand out for me.

First, it pays solicitors to do their own advocacy. The Bar persuaded Carter that criminal legal aid should pay a better advocates' fee than a litigators' fee. That was a completely principled stance and it was rightly accepted. However, the solicitors' reaction (fairly predictably) has been to move to litigation.

Secondly, and contentiously, that much of the advocacy the Bar is required to do is not terribly difficult. This has been a well-kept secret for years, although possibly not as well kept as some at the Bar imagined it to be. In reality, solicitors were not terribly interested in doing advocacy until it paid to do so. Consequently, they did not dispute the Bar's contention that all advocacy is specialist, which led some barristers to believe their own publicity.

The truth, however, is that a lot of advocacy is routine. That includes standard pleas of guilty, possession actions, road traffic litigation etc. Please note (what I am saying is quite contentious enough without adding misunderstanding to the mix) that I am not saying solicitors can do this better than the Bar. I am, however, saying that a lot of solicitors do this sort of work as well as a lot of barristers - or just a little bit less well but not enough for it to matter.

There is only so much advocacy to be done. If solicitors are going to do more of it then the Bar will do less. Less work ultimately means less barristers. I am afraid that I do not regard this as the end of civilisation as we know it, although the human cost is going to be unpleasant and likely to be exacerbated by the way in which the Government goes about things. In 1986 the population of this country was much the size it is now, but there were about 40% fewer barristers. Those were good times, but I certainly do not remember anyone campaigning for more barristers because the public were suffering.

The issue is how the Bar manages this decline. I remember the century brief scheme. This was a short-lived proposal that junior members of the Bar did a hearing and a conference (and perhaps an Advice as well - my memory is vague on this) for £100. On my Circuit the idea got short shrift, being seen as a way in which the entrenched middle ranking juniors protected their own practices against able youngsters, by ensuring that those youngsters did minor work for very little pay.

But as the deadly combination of falling rates and less work bites, it is important that the Bar continues to allow young talent to develop. I shall watch the figures with interest and concern - there are fewer pupillages on offer this year than last and it seems to me that the Bar is likely to 'self-regulate' in this area.

With due deference to MP I do not regard this as running down the Bar - from my place atop the greasy pole or otherwise. Staring reality in the face is what we are supposed to be good at. Nor do I resile from the views expressed in the Editorial above. However, the sad fact is that we are being positioned between a rock and a hard-place. If we cannot make room for talented pupils then the Bar will either die from the bottom up, or will become a second profession for those first qualifying as solicitors. If we are to make room for talented pupils then slightly less talented middle-ranking juniors may have to find other ways of making a living. That process will be bloody and bitter.

So, what can be done? Well, firstly we can concentrate on being as good as we can possibly be. When I sit as a Recorder I inevitably do work at what might be called the lower-end of the spectrum. Even on a plea to a bog-standard burglary, people who do a good job stand out and people who can't be bothered do too. Secondly, we could sell ourselves to clients better. Being approachable, collaborating with solicitors and making it clear that we are a specialist resource aimed at litigation and judgement sends out a message. The aim should be to persuade clients that solicitors can do the job but they are unlikely to do it as well. There are two components to achieving that aim. One is that it should be true. The second is that we sell it. I can do the first and I would like someone to tell me how to do the second, other than by way of personal example.

In that context we have a corporate responsibility to do the best we can and to sell the Bar as efficient and reliable. Part of that is not taking the absurd point that solicitor advocates should not be allowed to wear a wig. I do not see the defenders of 'tradition' in black and stripes - why is the wig so much more important? It isn't. Not only have we already 'lost' this argument - the tone of much of our response has not risen above a schoolboy whine. If I were a client, would I want a barrister who insisted that only in his wig was he distinguishable from my solicitor? No, I wouldn't.

When TB says that he would rather have a good solicitor than a good barrister, it seems to me that he is absolutely putting his finger on the problem. Once our role is considered to be secondary then we only have two choices. One is to strenuously try and put our role back in pole position. To do that the advice has to be solid and commercial (including crime - what is the risk/benefit analysis of a plea) and the judgement has to be good. We need to structure the BVC and pupillage to those two issues, which means that pupillage should be delivered by the person(s) best suited to do so. The other is to play second fiddle with good grace. Those aims can be mutually pursued.

I know that MP says he was speaking with his tongue in his cheek and I am happy to accept that. But a cull might be the best way forward. When those little seal pups are knocked on the head it is not necessarily because they are being attacked by sadists, notwithstanding PETA's hysterical outcry to the contrary. It may actually be, as the WWF says, that it is being cruel to be kind. There is a debate there, but we don't have it when the reaction of one or both sides is to acuse the other of deliberate wickedness.

So I would like to see the Bar Council keeping detailed records of people leaving the profession and why. As they are doing. And, at some stage soon, it may be that we have to have a horrible debate about how to allow people in the middle and at the top to exit the profession on the basis that they are not good enough.

There is an alternative, which is to allow barristers to form partnerships. At which stage the laissez-faire attitude about other people with whom one shares Chambers will disappear. It is one thing to worry about the odd return. It is quite another to have your own income directly linked to the performance X puts on in front of your solicitors and to be responsible for X's mistakes. The gap between sharing a Chambers with X and being a legal partner (or even an employer/employee) of X may well be immense. I think on balance the first method would be kinder.

'Tis the season to be jolly - I know, I know. But for those who believe that is based on the fact that Christ existed and died for the sins of others. It isn't based on a myth that there really is a little fat bloke in a red suit who brings you freebies because it's the end of December.

PS: This is a large topic and I am happy to publish guest-posts in response. Please email me if you would like to do that and we can discuss word-count and timings.


Law Minx said...

Hi Simon,

A thoughtful post with respect to the future of the bar; it seems to me to be very much a case of either get with the program ( i.e. the 21st century in full acceptance of Solicitors as Significant Others in the Legal Workplace) or get lost.
With respect to an email exchange some time ago, which completely slipped my mind given the work I've been doing over the past term, may I email you again?

Simon Myerson said...

Of course...

Mr Pineapples said...

Hey Simon.

I used to be someone else before I joined the Bar....someone BIG in the world of Commerce and Industry (not meaning to brag or nothing but a bit of context like this helps). I got to see other economic and business structures.

In my view the self-employed, lone practitioner status of the barrister has its merits but in the main it renders us much too vulnerable to the winds of change.

Chambers need to be more commercially minded; to have a house style and group mentality. How else are we to compete with the large law firms?

I like the idea of a partnership - but is this ever going to be achievable? I have discussed it with my fellow tenants but they have regarded my suggestions as more madness from The P.

What do you think TB? I promise I wont kick your butt with my usual ironic and witty comments.

Let's get a grown up debate going.

Anonymous said...

There is a clear distinction between the Bar as a market led supplier of advocacy services and the Bar as public service provider.

The former does not rely upon irrelevant distinctions between the historic development of two professions but upon supply and demand. Most successful solicitors are busy taking instructions, advising clients, corresponding with the other side, managing files, developing their business and so on. They simply do not have time to prepare for trial as an advocate. They could employ advocates but the majority of firms would not have enough advocacy work to justify employing full time advocates (there are exceptions). Besides a self employed contractor can do it more economically than a solicitor's hourly rate and the lay client has a choice of many barristers to pin his hopes upon - he is not tied to his law firm. In terms of contentious legal practice advocacy is a discrete specialism. If an advocate is skilled and adds something to the process he will have work.

There are more barristers now than in the past. But there are more solicitors and they are not relying upon public funding to make a living. It is the client's money and there are not many solicitors who could honestly say that they could conduct trial adocacy as well as a barrister, because they simply do not have the training and experience. Of course this is not the same as saying they are not capable.

As for the public service the Bar offers - surely the bottom line is value for money. It is after all public money and whatever system provides the best value for that public money without compromising certain fundamental standards is the only justifiable system. This may mean that the best system is not necessarily a split system. (I do not know whether or not it is). Focusing on historical distinctions between the professions in this regard seems to me entirely misconcieved.

Final comment, as a practioner from the regions it never ceases to amaze me, when I visit the legal capital and walk around it, how many barristers there are. I always find myself thinking is there a need for such a large number of barristers and where does all the work come from - what do they all do?

Mr Pineapples said...

"Final comment, as a practioner from the regions it never ceases to amaze me, when I visit the legal capital and walk around it, how many barristers there are."

Wow - Mister/Miss Annoymouse - your powers of discernment are truly amazing. You can spot a Barrister from 10 paces; you can just tell.

Is it the sheen of their double-breasted suits or the flashy inner linings? Or is it those garish socks they wear?

How do you do it? And how can you tell?

There are so many dreadful pairs of socks going around the City these days - and this should be stopped. I mean - what do all those socks do?

Gawd Knows - but it better be value for money!!

Anonymous said...

Mr P, sometimes I take my Barrister Spotter's Handbook. (I can assure you it is not good value for money). It illustrates all the common breeds: the greater broad pin striped; the lesser narrow pin striped; and the dark double breaster. Some breeds are quite rare. But usually I just glance at the long lists of names displayed outside the numerous chambers where they reside.

Mr Pineapples said...

Ah !! But what about the double spotted Three Piece Suits?

You have missed those altogether.

Keep up the good work.....and Merry Christmas

Law Minx said...

Happy Christmas, Mr P, you old grinch you! :)

Anonymous said...

And Mr P are you currently a director of two public companies?

Mr Pineapples said...

Two? Not quite two.

Why? You offering me a job? Word of warning: I love the Bar - am jealous of its standing and standards - and although there has been a lot of talk on this board about Solicitors - my view is that we do offer something unique and worthwhile.

Solicitors are good at what they do (although not all) and are trained to run cases. We have the independence of thought and distance from the client and from the commercial litigation senior partners to give impartial advice.

So for all the doom mongers we must stand proud of what we can offer. We are unique even when compared to these Solicitor-Advocates; whether they have a wig or not.

But why are we so uncommercial and other-worldly when it comes to marketing and development?

advocatus diaboli said...

Maybe it's because the Bar has refrained from selling out to commercialism, remaining distinct, independent and unique. The Bar is made up of alot of individuals who would perhaps find it quite difficult to subscribe to a uniform marketing strategy, even within one set of chambers. There are of course new chambers emerging or 're-branding', for want of a better word, that do have the appearance of being slick and 'corporate'. However, chambers is really just a home for a number of individuals who have gone down the route of becoming a barrister precisely because they are independent minded and do not require the umbrella of a corporate identity as a professional front. AD :-)

Mr Pineapples said...

Don't require? Are you suggesting that any set of Chambers does not require some sort of unified image? There are Chambers who are indeed seeing the benefits of having a distinctly professional and modern image as opposed to giving the impression of simply being a rag-tag of individual barristers - who happen to share the same building, with its mish-mash of higgeldy-piggeldy furniture and 1960's wallpaper.

We could reduce any professional grouping into its skeletal frame and reveal it to be less than it appears.I wont bore you by doing it here for a solicitors practice or an international firm of accountants - but I could.

But the Bar (especially the commercial bar) needs to step up a gear and embrace technology, marketing and development. To give an image (at least) of sitting comfortably in the 21st Century...otherwise old Charlie Boy Dickens will be turning in his grave.

advocatus diaboli said...

Mr P - this topic has clearly got you hot under the collar, or perhaps you have indigestion from over-indulgence during the festive period?!

I must confess that your description of "a rag-tag of individual barristers, who happen to share the same building, with its mish-mash of higgeldy-piggeldy furniture and 1960's wallpaper" is not a picture that I am familiar with. You obviously frequent more 'interesting' sets of chambers than I have had the pleasure of visiting! Of course all chambers have a unified image to some extent (even if it extends to little more than a chambers logo and a shared building). However, presenting a 'modern' image (as undefinable as that is) is not necessarily synonymous with being more professional. Whilst my experience is pretty limited, many of the big commercial sets with which I am vaguely familiar are clearly very well entrenched in the 21st century, making full use of modern technology and slick marketing - one might even describe some as being decidedly 'image conscious'.

It's a matter for the individual chambers surely. If the members collectively consider there to be sufficient advantage in expending considerable amounts of money on technology, marketing and development, then one imagines they will do so. Is it not the case, however, that the structure of chambers as a group of self employed and largely self interested practitioners is, in itself, something of a disincentive (rightly or wrongly) to the pooling of the individual's resources for the purpose of collective promotion, not least because the proportion of fees being contributed to the chambers coffers will probably have to increase as a result?

In the commercial sphere the extensive use of technology and sophisticated marketing resources is driven both by the self-interest of the organisations (in presenting themselves in a particular way) and the pressures created by external competition. The Bar seems, to some extent, to be less affected by external commercial pressures to 'look the part', perhaps because the services it offers are so specialised and can only be obtained from the Bar. Perhaps an increase in solicitor's firms offering advocacy services will provide the external commercial pressures that will drive some chambers to adopting a more modernist approach to self promotion and presenting a more corporate image. However, having watched with interest the very slow pace that is achieved in chambers when some members are trying to drive forward a programme of 'image enhancement', it's quite clear to me why many would shy away from the process unless they see it as being crucial to their continued success. It's a bit like the old saying - if it ain't broke, don't fix it...

By the way, I think you can buy Rennie's at most good chemists - just in case that is a bout of indigestion you are suffering from! AD :-)

Mr Pineapples said...

Trouble is me olde Latin One - Mr P has lived a life in the Commercial World before He came to the Bar - seen it - done it - got the T-Shirt. Knows a lot – and is now imparting wisdom – at no charge…..appreciate it whilst it’s free.

Of course people will shy away from change - what do you think the Conservative Party is all about? Institutionalised luditism (despite what Mr Cameron says). The Bar is full of ludites....luditism is dripping off it like candle wax. But we must not let them get away with it.

As for not recognising the Chambers I describe...well you must get out more - get some experience...do a recky...check out the furniture.

Commercial sets being technological etc....what? You kiddin’ me? Okay so they are only 5years behind the large commercial law firms...who are 5 years behind the large accountancy firms (no - make that 7 years).....the years do catch up on you.

And Mr P never over-indulges at Christmas... you got that one so wrong: Mr P is a lean, mean boxing machine....believe it….

The whole point of my little peroration was to get a massive debate going about alternative structures for the Bar – such as partnerships. We do have to move with the times you know.

The 50-Year-Old Pupil said...

In the 19th century, "attorneys [solicitors], however - who were themselves given a right of audience in the county courts as well as being able to do "all that is necessary for the client out of court, such as collecting evidence, writing letters, serving notices, etc." - had little incentive to retain barristers on behalf of their clients." (Pue (1990) 15 Law and Social Enquiry 49-118, at 90) Sounds familiar - so what changed? How did the Bar build its county court practice?

advocatus diaboli said...

"Mr P has lived a life in the Commercial World before He came to the Bar" - I am rather entertained that you should use a capital 'H' - are you trying to tell us something?!

If indigestion is not your excuse, I wonder that you remain at the Bar at all and do not return to the gloriously forward-thinking, modern and technologically advanced world of accountancy - unless, of course, you are a man on a lone mission to save the Bar from itself in all its old fashioned, short-sighted, archaic and understated glory!!

Happy New Year! AD :-)

Mr Pineapples said...

Oh Me Gawd.....you are not as thick as you seem....in fact you are perceptive.

Mr P is indeed on a mission: to undermine the pernicious effect of Bob Cratchit; to liberate Barristers from taking Briefing Notes in those little Blue Books; to add an understanding of computers, programmes, marketing and development. To point to the New World.

To Unite the Bar as we tread towards the 20th Century....it can be done and He (Mr P) can do it.

Let's get on the Lurv Train of Mr P...Get on Board...Who is with Mr P??

advocatus diaboli said...

The silence is deafening (tee hee)! AD :-)

PS Apologies to Simon for hijacking his blog...