Commercial & Chancery: Reform school

As the Carter and Clementi reforms start to take effect, how will the commercail bar fare under the new regime? Industry experts consider their likely impact

The face of the legal profession is set to change radically over the coming few years, but will these changes affect the commercial bar?

Jonathan Fox, chief executive, St Phillips Chambers
The bar is in a bit of a quandary about the Carter and Clementi reforms, with a number of sets not really knowing what to do.There are changes on the way, but several sets are burying their heads in the sand hoping that these things will go away, rather than sitting back, taking stock and making plans for the future.

Sets have to consider a strategy of ‘get big, get niche or get out’. It may sound rather tough, but the way forward is either to be a big player for the various markets in which you operate, or be a niche player.

Many commercial clients and law firms want to recruit barristers and say they want to control a greater part of the supply chain – from instruction through to having in-house counsel going to court and so on. When law firms start to recruit large numbers of barristers, that is the day large sets of post-Clementi chambers will be in direct competition with law firms.

Personally, I am not worried at all about the Carter and Clementi reforms. While some see them as a threat, I see them as an opportunity for sets to take on more work and break into new markets.

Robert Graham-Campbell, chief executive, Maitland Chambers
The Carter and Clementi reforms hint strongly at a fused profession of solicitors and barristers operating within one organisation, as in many overseas markets.

For the commercial bar there can be no direct impact from Carter, but does that make it immune to its implementation? Probably. However, there is a concern that if Carter hastens the adoption of Clementi’s alternative business structures across large swathes of the bar, the remaining independent bar may be left more specialised, but smaller – and possibly weaker – as a consequence.

In relation to Clementi, there seems to be little pressure for commercial chambers to adopt alternative business structures at present, or to change the nature of their current professional relationships with solicitors.

Having genuine expertise and experience is essential and this is best gained by being a free and independent practitioner in the market, rather than by being an employed barrister. This perhaps explains why solicitor advocacy has not made much impact on the use of the bar for heavy litigation.

It appears that the publicly funded bar is likely to change significantly under the combined effects of Carter and Clementi, with its traditional chambers structures at least coming under review. But for the commercial bar, such change seems far less likely for some time to come.

Stephen Allen, chief executive, Seven Bedford Row
The only true constant is change. Embrace this and you will thrive. Ignore or resist it at your peril.

While it is unclear what legal service reform will enable us to do, it is evident that the brave new world is one of great potential.

As long as the independence of the bar and its practitioners is preserved, ensuring unfettered access to justice, then Clementi presents us with a number of very exciting prospects.

I am concerned about the approach taken in respect of the implementation of the Carter recommendations. Carter himself acknowledged that any changes needed to be made gradually to enable the market to evolve stably.

Carter’s intention was to increase access to justice by maximising the benefit of the monies available for publicly funded legal services. If his advice is not followed in its entirety, the opportunity for competition in the market will be undermined and, for those who most need it, true access to justice will be a thing of the past.

Joanna Poulton, chief executive, Landmark Chambers
The Carter and Clementi reforms, if fully implemented, will have a substantial impact on all aspects of the bar.

Will it improve things for the lay client? I doubt it. These reforms, in my opinion, are purely Treasury led. These affecting the criminal and family bars are aimed solely at the Government’s desire to have predictable costs.

If, as a society, we do not believe that we should provide the same standard of legal service to all, regardless of means, then the Government should be totally open about this and stop putting the financial risk onto the private sector. If the Carter reforms go ahead it will simply not be economic for either barristers or solicitors to work in these areas.

In the private sector, if one believes that the market should determine its own needs, in my view there will be little appetite for any of these new Clementi models for the simple reason that choice would be greatly reduced.

Choice, and plenty of it, helps to keep costs down. Solicitors and other professionals are perfectly capable of making an informed choice. By having multidisciplinary practices (MDPs) with in-house counsel, they deny their clients the chance to go to the best advocates who, after all, are simply one form of legal expert.

Unless the Bar Council changes its rules on professional conduct, barristers will be conflicted out of cases the minute they attempt to share profits, either through share ownership or under any other profit-sharing arrangement.

Each chambers is different, but those that do not look at these reforms and make sure they understand the impact on their client base are closing their eyes to the blindingly obvious – that in the long run they may have no clients to instruct them.

Ann Buxton, chief executive, Hardwicke Building
A focus on the assurance of quality, both in advocacy and in advisory services, will have to be proven under Lord Carter’s reforms to legal aid. The bar must lead the implementation of improved standards of advocacy, case and trial preparation and management, and promote the efficient and effective conduct of trials.

The Clementi proposals, now comprising the Legal Services Bill, present important issues for the commercial bar to consider. The bar in general needs to preserve its independence from Government as a defence against excessive use of power by the state.

The concern that the Legal Services Board would now be appointed by the Lord Chancellor creates a significant conflict as the Government is the largest consumer of legal services. It could create the impression of government control of the legal profession in the minds of the public.

Clementi also proposes alternative business structures and MDPs for law firms which have been the subject of much speculation. These will almost certainly change the nature of the relationship between barristers and their instructing solicitors and, with other changes, lead to a significant expansion of direct access to the bar.

All of the above points to the need for a drive for improved quality at the bar to preserve the best of its advocacy and specialist advisory services in the face of the most radical transformation of the legal profession for 200 years.

how will the commercial bar fare under the new regime? Industry experts consider their likely impact