16 October 2000
Together, these men control businesses with a total annual turnover in excess of £100m. They are the big boys commanding big pay packets and governing an empire, the influence of which extends across global financial centres. They are the senior clerks. Between them, they run the five premier commercial sets of chambers in the country, and throughout the years they have built the careers of some of the legal profession's brightest and most successful individuals. Just look at the current roll call of headline-grabbing stars: Jonathan Sumption QC, Gordon Pollock QC, Lord Grabiner QC, David Pannick QC and Lord Goldsmith QC.
And yet the 1990s saw the clerking fraternity facing a barrage of criticism for astronomical wages, failure to adapt to modern business management methods, and for wielding excessive power. Infiltrating a network that is more "old boy" than that of their paymasters has been a new breed of managers under a variety of guises - the practice manager, the chief executive and the chambers director. Generally, these have come from outside the barrister's profession, either from law firms or from other industries altogether, such as NHS Trusts. They arrived in a blaze of publicity - seemingly one of the main reasons for hiring them - and proceeded to lunch, strategise, market and, for many, antagonise. The end result has commonly been a short-lived term of office, and increasingly a reversion to traditional clerking methods. It is not insignificant to note that following the recent departure of Ric Martin from Fountain Court (who is not going to be replaced) not one of the five magic circle sets - One Essex Court, Essex Court, Fountain Court, Brick Court and Blackstone Chambers - has a chambers director or chief executive in its employ. The senior clerks are in the ascendance once again.
Blackstone Chambers' senior clerk Martin Smith has a very simple explanation: "In all fairness, the legal market is not interested. Chambers directors just don't understand the core business." Essex Court Chambers' senior clerk David Grief is equally unforgiving: "I always find it odd that people are brought in from outside, with no idea how the market works or how chambers operate. They can't sell chambers properly. You're not selling baked beans."
One of the first to enter the fray - and one of the latest to leave - is Tony Wells, chambers director initially at mega-set Hardwicke Building and more recently at 4-5 Gray's Inn Square. Although he lost out to Alex Le Clezio for the top spot in the proposed new entity of a merged 4-5 Gray's Inn and Monckton, Bentham Chambers never happened and Wells was asked to stay on. He rejected the offer and has now left the bar altogether.
"I think the whole thing is a panto anyway," he says. "The bar has only paid lip service to the idea of a chief executive. Some have simply used it as an excuse to get rid of a senior clerk they thought was paid too much money, but they are not prepared to give [the chambers director] power, so it's a misnomer. You are not a chief executive because you are not given the power to manage."
There are only a few outsiders who have been able to infiltrate successfully the tightly-knit clerking profession. Along with Wells there is David Douglas, chambers director at Littleton Chambers, and Carolyn McCombe, a former solicitor and now senior clerk at commercial set 4 Pump Court. She says one of the reasons for her success is that she did not come in at the top, but into a clerking team. She also believes that the role of chambers director is often doomed from the outset.
"It's really a short-term job. It's difficult to produce on a continuing basis. People will look at a chief executive after two years and ask what value they're adding. How do you develop a business if you don't really understand the market and barristers?" she says. Jo Ferrigno, first junior at Essex Court, agrees: "There's a learning curve of at least five years and they are just trying to catch up. People think that there's an easy fix, but there isn't."
Clerks still start their careers early, often aged just 16 or 17, and build up longstanding relationships with clients that even in today's harsh business environment cannot be underestimated. It is not just the understanding of individual client needs that makes clerks so valuable, but their ability to deal with the barristers themselves.
Chambers directors often come in expecting to have authority, expecting to be the equal of their barrister bosses, but the traditional relationship between a barrister and their clerk can be very different. "If Pollock wants to shout at me, he can. You do get kicked around a lot. It's a strange relationship, but one that's very special to me," says Grief.
One of Smith's early experiences at the bar highlights perfectly the sort of treatment a clerk can expect to receive. As a junior clerk, Smith was showing representatives from a major bank into a conference with a senior barrister. He held the door open with one hand and took coats with the other. One of the bank's board members took the opportunity to grab Smith's testicles. Understandably aggrieved, Smith reported the incident to his senior clerk, who told him: "You are the ship's mud - now sit down and shut up." Unhappy with that response, Smith called the barrister in the conference. Having heard an explanation of why Smith was interrupting such an important meeting, the barrister turned to the bankers and calmly asked, "Tea or coffee anyone?".
But that is not to say that you cannot turn the tables. "[Chambers directors] don't know about how to speak proper home truths to members of chambers. You have to be prepared to ruck a barrister out," says Smith.
The simple fact is that, more often than not, the role of chambers director is not properly thought through, and a person coming into the role can have very different expectations to those of their barrister bosses.
Wells believes that until attitudes and the bar's practice rules are radically changed to allow chambers to operate as a corporate entity, either through partnership or incorporation, the role of a chambers director or chief executive is redundant beyond a short-term project management post. "The fundamental problem is the structure of the bar. There will be disarray until you get rid of the system where you have 56 managing directors from 2 years call to 46 years call. If you've got good senior clerk
s who have learnt about modern management, and if they've adapted, then you don't need to change," he says.
The prospect of allowing barristers to enter into partnership may be closer than some people think, particularly for the large sections of the impoverished criminal bar and for other volume litigation practices. And while there are some who believe this means the death penalty for the bar, at the top end, most commentators maintain that there will always be room for a specialist advocacy service.
Ferrigno has witnessed the bar grow from just 3,500 barristers to more than 10,000, but he can see it shrinking back to its original size. He says that what motivates people to come to the bar in the first place does not support a role for a chambers director. There is obviously a great deal of risk associated with a career at the modern bar, and its continued popularity is largely down to the control that barristers can exert over their professional lives. As a result, Ferrigno does not believe barristers will ever subscribe to practising
in a corporate entity akin to a company or even a law firm where a chief executive wields real power. "I can't see a chief executive ever imposing their will on a set of chambers,"
But while chambers directors have become the new target for dissatisfied barristers, clerks are still on the hit list, particularly when it comes to their salaries. The appointment of a chambers director is still attractive to many sets, simply because of the opportunity for cost savings. Typically, chambers directors can expect to earn between £100,000 and £150,000. Top-earning senior clerks can expect to take home at least £300,000 and in
some cases significantly more, so clerks have to be prepared to adapt to changing market conditions.
Despite the recent departures from One Essex Court - in part blamed on
what was termed heavy-handed clerking management - Robert Ralphs and Paul Shrubsall have both showed themselves willing to do just that. Most recently, this has meant
Shrubsall getting back to some hands-on clerking, making himself more visible to his paymasters, and leaving Ralphs a bigger share of the practice development responsibilities. Shrubsall says he now spends 70 per cent of his time involved with traditional clerking duties.
But this is not the first time that the two senior clerks - Ralphs, the doyen of the clerking world, and Shrubsall, who was awarded an MBE for his service to the profession - have adapted so as to avoid being backed into a corner.
Unusually, both are still paid purely on a percentage basis, but when the rapid growth of chambers resulted in massive pay hikes for them, they are understood to have renegotiated their percentage cut downwards.
Grief, too, was quick to act to avert any potential internal conflict about his remuneration, switching from a pure percentage to a retainer plus a percentage. "I was one of the first of a new breed of clerks in 1980 to go onto a new deal," he says. "I was viewed by many as selling us down river."
So while there will inevitably be a continual downward pressure on the wages commanded by senior clerks - after all, wages will typically account for 50 per cent of a set's overheads - at the top end, their positions seem secure. No outsider can possibly have the same understanding of 50 individual barristers' businesses as a clerk who has worked in the same set for 10 or 20 years can. There are obviously those clerks unwilling or incapable of adapting to an increasingly corporate world, but the fashionable status enjoyed by chambers directors only a year or so ago is fading rapidly.