Bar revolution forces QCs to mind their Ps and Qs as clients gain the upper hand

WHILE many firms have spent the last 12 months trying to insulate themselves against the recession, the Chancery Bar has been evolving into a new beast.

For commercial clients, litigation is a costly business and paying top dollar for a barrister who offers little commercial value is an unattractive proposition. Some litigation practices have responded by cutting rates, but litigators are demanding more bang for their buck from the bar.

Although entrenched in tradition, sets are looking at how they can respond. This month Hardwicke Building unveiled plans to overhaul its structure into four client divisions (The Lawyer, 11 May). The set hired Matrix Chambers practice director Amanda Iling to drive through changes including scrapping the clerking role in favour of practice directors.

Hardwicke head of chambers Nigel Jones said: “The vessel in which we sail may well have changed. We’ve come to the conclusion that we need to offer the best possible service and we’ll worry about the vessel later.”

Scrapping the clerking role, however, has drawn mixed responses. One rival practice director warned: “Clerks have been in senior positions for years, solicitors trust them and many have personal friends in firms.

“You’ve got to be careful not to throw the baby out with the bathwater. Modernisation is good, but you need to be very careful.”

The fact is that the role of the clerk is changing, he added.

Devereux Chambers is also looking to change its structure, having created the role of chief executive. Beverly Landais, formerly director of marketing and business development at Baker & McKenzie, has filled the position and will be responsible for raising the set’s profile, according to head of chambers Colin Edelman QC.

Clifford Holland, the set’s deputy senior clerk, added: “Gone are the days where clerks do everything. We, like many other sets, have decided to get someone in to manage what is a multimillion-pound business.”

One practice director told The Lawyer: “They [clerks and barristers] need to be more commercially aware, they need to be more proactive about making things happen and get out there.

“This means offering broader services and being approachable and friendly. Five years ago it would have been unthinkable for a barrister to give a solicitor their email address, now it is commonplace.”

24 Old Buildings practice director Nicholas Luckman said: “In the global marketplace for us it is about ­raising the profile both in the domestic and international market. The strategy depends on the jurisdiction.

“It takes many years to develop a relationship with a client you need to be committed to the jurisdiction and to the client.”

In March, Eversheds announced it would radically overhaul its use of the external bar in a drive to increase competition for its work (The Lawyer, 23 March). This came after a review conducted by head of litigation Ian Gray concluded that the firm spent too much on outside counsel despite having its own in-house advocacy unit.
In-house advocacy units are a sensitive issue for the bar as it means sets are competing with in-house units as well as other barristers.

“They’re all getting panicky,” one clerk admitted. “They’re worried that solicitors are doing more of their work.”

Last week, Lady Justice Smith, president of the Council of the Inns of Court, withdrew a letter to resident and presiding judges that asked them to assess the competency of High Court solicitor-advocates and employed barristers. This came after the Law Society raised concerns over the potential for bias against advocates.

Nevertheless, some senior barristers have serious concerns about firms using in-house barristers rather than seeking the independent opinion of counsel when bringing a case.

“It can be argued that the independent bar always has a role in commercial cases,” said one senior barrister. “Using in-house counsel is bound to raise questions about conflicts - is that person really going to give an independent opinion?”

Yet, when clients are looking to keep costs to a minimum, the solicitor-advocate can be a useful tool for firms that want to offer a fully rounded service.

“It’s a case of put up and shut up,” said one senior ­litigator. “One QC spoke down to a client of mine recently - it was one of the most embarrassing ­situations I’ve ever been in. The client refused to use that QC again, even though he was probably the best for the job.”

The recession will undoubtedly stir up further litigation, although just how much is still in doubt. Serle Court chief executive Nicola Sawford said: “We do expect there to be an increase in insolvency work and related work such as fraud and professional negligence later this year. However, we don’t expect a tsunami.”

This could explain why so many barristers are on the lookout for new sets.

Serle Court recently attracted private client specialist Professor Jonathan Harris as a tenant. And fraud specialist John Rees QC has joined Liverpool-headquartered Exchange Chambers as a door tenant. Media specialist Heather Rogers QC defected to Doughty Street Chambers from Matrix and Brick Court scored a coup when it attracted retiring Law Lord Lord Hoffmann as a door tenant.

When David Oliver QC joined 13 Old Square from Erskine Chambers in March, he told The Lawyer: “I’m going back to doing core litigation.”

There is much change at the bar while sets and barristers alike vie for position at the top of the litigation chain.

Those sets that are attempting to build new relationships directly with the client without using a lawyer may have to wait before seeing the fruits of their labour.