A breed apart

Despite the Bar Council professing otherwise, employed barristers still feel like second-class citizens. Brendan Malkin asks: can their status drop any lower?

“What's wrong with us?” That is the cry of those who comprise the employed bar after years of being snubbed by their self-employed peers as either inferior or not even part of the profession at all. The bar might profess to be one glorious and united profession, but the evidence is does not support the claim, particularly since the North East circuit's proposal to ostracise the employed bar from its membership (The Lawyer, 7 May). In a show of solidarity with its employed members, the Bar Council has threatened the North East circuit with expulsion. But has anything really changed?
“We've been upholding the one bar principle since the days of former Bar Council chair Heather Hallett QC, and we aren't going to stop now,” trumpets a Bar Council spokesman.
Which is great, but Hallett only led the Bar Council in 1998, which is hardly evidence of a long history of unity. And its record since is far from unblemished.
In March 1998, the Bar Council finally agreed to give barristers employed in industry rights of audience in the higher courts, but then issued such onerous restrictions that very few were actually able to comply with them (The Lawyer, 31 March 1998).
This was followed in June by a rule change effected by the Bar Council that removed barristers' rights of audience if they were not in independent practice or working in-house (The Lawyer, 16 June 1998).
Then, in February 1999, the Bar Association for Commerce, Finance & Industry (Bacfi) threatened to split from the Bar Council if the extended rights of audience provisions for employed lawyers were dropped from the Access to Justice Bill. At the time, Susan Ward, chair of the Bar Council's Employed Barristers' Association, claimed that the Bar Council was not as committed to extending audience rights as it made out (The Lawyer, 8 February 1999).
Even today there is strong evidence to suggest that members of the employed bar are treated as anything but equals. For instance, although the Bar Council has pushed for employed barristers to be permitted litigation rights (The Lawyer, May 14), Ward says the involvement of the council's employed barristers' committee was “absolutely minimal”. The bulk of the work, it seems, went to the professional standards committee and the council's Sheldon sub-committee. “Sometimes our committee doesn't get the same importance attached to it by the Bar Council as other committees do,” says Ward. At the Bar Council's June annual general meeting, one motion put to the vote was whether the employed and the self-employed bar should be treated as equals. Significantly, 22 per cent voted no, with 42 per cent supporting the motion.
The employed bar is also still smarting from the Bar Council's consolidated regulations, introduced last year, which mean that many non-practising barristers (NPBs) will no longer be able to call themselves a barrister. NPBs are distinguished from employed barristers because they can advise both their employers and their employers' clients, while employed barristers can only advise the former. Some NPBs will retain their professional title until July 2005, but only if they were registered as NPBs before last July's deadline. The remainder have had to remove 'barrister' from their job description. They must now call themselves something else, such as legal adviser. Former NPBs have also had their Bar Council voting rights revoked.
However, the employed bar essentially agrees with the Bar Council's concerns of there being bad eggs in the NPB basket. Mark Stobbs, the Bar Council's head of professional standards and legal services department, says: “There was concern that if you call yourself a barrister and say you're a member of the profession, but haven't done everything needed to practise, then it's odd to hold yourself out as such. Also, some NPBs were doing things like having direct access to clients acting in partnerships. Basically, running a coach and horses through the rules.”
The majority of NPBs, however, are highly qualified and experienced lawyers who deeply resent what has happened to them. Again, it is a case of the employed bar being treated as second class.
Patrick Walker, an employed barrister and director of advocacy at Hammond Suddards Edge in Leeds, says: “This treatment of NPBs is very harsh for them, as it is throwing out the baby with the bath water. The bar claims they want to protect themselves from people who have either no training or no experience, while the vast majority have either one or the other.”
In all fairness, there are bad eggs at the independent bar too – just look at the list of independent barristers on the Bar Council's website who have been punished by the council's disciplinary tribunal. Also, as Walker points out: “There are mechanisms in place to protect firms against commercial pressures [which may compromise an employed barrister's integrity]. The only mechanisms in place for self-employed barristers is individual integrity.”
Anthony Nixon has just become an employed barrister at Isogenica, a life sciences company in Cambridge. Called to the bar in 1979, he took advantage of Bar Council rule 212, which, as an NPB, enabled him to run his own business and advise others. He remains a director of his firm Warwick Partnerships. “I'm currently discussing what to do with the business in four years time,” he says. “Losing the title of barrister won't help us grow our business, so we'll have to keep a closed list of clients. Meanwhile, I've joined a start-up which may or may not make it. In July 2005 I may want to become an NPB. I run the sort of career where I can have this kind of flexibility.”
The employed bar also expresses great frustration at being banned from advising their employers' clients. Only those employed by trade unions, who can advise union members, and those in law firms are exempt. In both cases, employed barristers need to have completed their pupillages to do so.
Bacfi chairman Christopher Moore thinks the restrictions are ridiculous. “If you're a barrister but haven't completed your pupillage, you'll not be able to deliver certain services for a firm of solicitors. This is a ridiculous and stupid state of affairs,” he says. “For instance, you could be a legal adviser [as an employed barrister] to IBM, but if you advise on corporate contracts for IBM's solicitors, then you can't say you're a barrister. Who are they trying to protect, or is it just another example of a closed shop? I don't feel it's appropriate to exclude sections of the bar from holding themselves out as barristers just because they work for accountants.”
On 1 January 2002, the rule that employed barristers can exercise rights of audience without having completed their pupillages will end. According to Stobbs, this is to improve standards. “It's appropriate that barristers have the right training and competence,” he says. “It's anomalous for them to be employed barristers without having completed their pupillages.”
The rules governing pupillages have also changed, allowing employed barristers to do all their training in a firm rather than in chambers. Previously, the first six months were done in chambers and the second in a firm. The move was intended to open up more opportunities for potential barristers, but, as reported in The Lawyer last week, just four non-Government-related organisations have registered to train pupils. Pupils in firms need to train with a pupil master with at least six years call and one other, either a barrister or a solicitor, who has been practising for three years or more.
Walker is pupil master to his law firm's first pupil, who is currently being trained. As Walker believes that the best pupillages are done in tandem with the independent bar, his pupil is due to visit chambers to learn from what she observes. “It's useful for employed barristers to learn from as many barristers as possible, particularly as we don't have the number of barristers in firms that there are in chambers,” he says. “Pupils can learn from barristers in chambers in terms of legal matters, ethics and conduct.”
However, he criticises the Bar Council's rules, which require that the second pupil master has high rights of audience in both civil and criminal courts, when he says most have rights only in the civil courts.
Ward says the bar should scrap pupillages altogether and replace them with “coursework” for employed and self-employed barristers alike. She says the Nottingham Law School has already found the plan to be feasible after it was suggested by Bacfi's Collier committee. “When the bar profession exclusively did the work of advocacy, and when more cases went to court, you could understand that this type of training was appropriate,” says Ward. “But today there's more diversity of legal services provided by the bar, and we need to review whether the training can be provided in another way.”
This view is enforced by statistics released in April last year by the Employed and
Non-Practising Barristers' Association (Enpba). It revealed that a mere 20 per cent of student barristers were likely to find a pupillage via the bar's Pupillage Application Clearing House Scheme (Pach) (The Lawyer, 10 April 2000). The Bar Council is now to set up a task force to see how it can improve in-house training opportunities.
Andrew Dickie, then Enpba's elected Bar Council representative, said at the time: “They underline the need for an independent rights of audience application so that at least some
of these graduates may exercise rights of audience and practise their legal skills via an alternative route.”
Ultimately, the employed bar is better off today than it was five years ago. Its members still say the independent bar fears fusion, but at least the Bar Council is waving the flag of unity. However, it is clear there remains a multitude of problems. “It's not so easy when there are still a substantial number of self-employed barristers who consider that those in the employed bar aren't really barristers at all. There's still a very conservative element around,” says Ward.
It remains a preposterous situation when the independent bar is ostracising a potentially huge pool of clients. It can only be hoped that the push on direct access will expedite full acceptance of the employed bar.