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.