In-house revolt against ruling bodies' bureaucracy
2 August 1999
19 February 2014
12 June 2014
20 January 2014
12 May 2014
27 May 2014
In-house lawyers are fed up. Employed barristers accuse the Bar Council of, at best, ignoring their needs and, at worst, betrayal. In-house solicitors, meanwhile, claim they are under-funded, and unappreciated, by the Law Society.
To add insult to injury, the House of Lords has thrown out the Government's plan to give in-house advocates the same rights of audience as private practice lawyers, amid claims that they cannot be trusted.
Leading in-house lawyers now warn that a complete split from their respective professional bodies could be on the cards unless matters improve.
For the Bar Association for Commerce Finance and Industry (Bacfi) - whose 2,000-plus members make up around 25 per cent of the Bar Council's membership - the rights of audience issue could be the final straw.
Chairman Susan Ward says Bacfi is amazed and dismayed by the claim made by Lords Ackner and Hutchinson, that in-house lawyers cannot be trusted to have High Court rights of audience. And she suspects the council shares the Lords' views.
"The council seems to be campaigning against the interests of a significant proportion of its membership, which is of much concern. It ostensibly welcomes reform, but a considerable proportion of its members oppose any rights of audience for employed lawyers."
But the council has been quick to distance itself from the Lords' views, denying any suggestion that it betrayed its members. "The council neither inspired, nor lobbied for this amendment, and anyone who says we did is palpably wrong," says spokesman Jon McLeod. The council campaigns on behalf of all its members, he says.
McLeod highlights an amendment, tabled by the council, seeking to make it a contempt of court for an employer to try to impinge on the independence of an employed advocate, which, he says, would benefit employed barristers.
McLeod says the Lords' vote was "a symbolic gesture" motivated by legal traditionalists. "The Lords has its own mind and opinions," he says.
He gives the council's party line on extending rights of audience another airing: "Our position on rights of audience is well known: we support a competitive market in the provision of all legal services, subject to certain safeguards in the public interest."
The clause that the Lords majority blocked out would have prevented bodies such as the council from doing exactly what they do at present: limit audience rights of employed lawyers more than its other members.
The council last year changed its rules to allow very limited rights of audience to employed barristers. However, the attached "safeguards" culminated in a bunch of rules Ward describes as "absurd".
Unlike the most junior independent barristers, who have full rights as soon as they are admitted to the Bar, employed advocates may appear in the High Court for interlocutory proceedings but not substantive ones. It is a "ludicrous distinction", according to Ward.
Furthermore, in-house lawyers can only exercise these limited rights if they can show experience in specified fields and that they work in a legal department consisting of at least three people.
"I'm a sole general counsel, so I'm ruled out, even though I spent many years in independent practice," Ward says.
"We are constantly pointing out how absurd these rules are, but the council says that's how far it's prepared to go, and that's it."
McLeod comments: "Any body that is in the process of internal change proceeds slowly. It's more evolutionary than revolutionary. Governments tend to accelerate change through legislation."
To Ward's accusation that BACFI members are not getting anything from the council for their money, McLeod says he is willing to meet her "anytime, anyplace, anywhere" to discuss the needs of employed barristers. He is quick to point out, though, that employed barristers pay a substantially reduced subscription rate. "They pay a subscription rate which is commensurate with their call on the council, if you like."
There are no plans to raise their rates, he adds.
Ward retorts: "Many members feel they are not getting the service - or the representation - for their money. They certainly wouldn't want to pay a higher level so the council can use the money to campaign against us. If the council started to represent our interests they wouldn't mind."
Ward says the Bacfi has discussed splitting from the council many times, but the issue has never gone to a vote. She warns that, although Bacfi members do not generally want to see a split, it is a possibility. "If the rights of audience are thrown out of the Bill, we might have to think along those lines.
"We are barristers and want to be part of the mainstream community of the Bar. We don't want to go it alone. We don't want to be pushed aside, but we don't want to be treated like second-class citizens either."
Relations between in-house solicitors and their professional body, the Law Society, are equally strained. This time the issue is principally one of funding, and again in-house lawyers say they may be forced to break away from the Law Society.
Chairman of the Law Society Commerce and Industry Group (C&I), Paul Gilbert, accuses the Law Society of crass stupidity in giving his group a "pathetic" £12,600 in annual funding. In-house solicitors, he says, pump millions of pounds into the legal profession every year through contracting out work to the private practice sector, as well as through the millions paid in practising certificate fees.
Gilbert, head of legal at Cheltenham & Gloucester, warns that more and more in-house solicitors are handing in their practice certificates. "Lawyers say their companies are reluctant to pay the £500 fee because they don't see any value to it.
"The C&I Group does not want to break away from the Law Society, but it is unsupported and under-valued and that largely seems to be a recipe for making the proposal more likely."
He is quick to point out that many Law Society officers are supportive of his group, but claims there is a lot of "negative nonsense" coming from "dead in the wood Luddites" who claim in-house solicitors are not proper lawyers, and not independent.
Gilbert says in-house lawyers are a good news story: as well as bringing lots of money into the profession, they have few disciplinary or negligence problems and good reputations with opinion-formers within industry. This, he adds, benefits lawyers as a whole - so the Law Society should support them.
The £12,600 grant is "almost not worth having", according to Gilbert. More money is required, he says, to cover expenses, provide more training for in-house lawyers, and for consultation exercises.
"We're not interested in being prima donnas sitting on our backsides having lavish conferences in Paris, and the like. I just want to see the group properly supported and funded. I don't want to mount an all out attack on the Law Society, I just want to bring these issues to its attention."
Gilbert concedes the Law Society is starting to move in the right direction. Last week, on the day The Lawyer revealed Gilbert's concerns - and hours before he was due to air them in a speech at the C&I Group's annual dinner - Law Society deputy vice-president Kamlesh Bahl offered the C&I Group £20,000.
"I am very grateful for any more funding, but it must be seen as the start of something and not just a one-off," he says.