The issue of whether partnerships should be permitted at the independent bar has been considered again and again in the last 30 years, by both outside bodies and Bar Council committees. On each occasion, the clear recommendation has been that the rule against partnerships should not be abrogated.
The justification for the rule, which Andrew Arden misstates, lies in the public interest in maximising choice and access to the bar. If partnerships are permitted, the ability of a client to instruct a barrister of his choice will be drastically reduced.
The argument was well put in the Report of the Royal Commission on Legal Services: “The justification for the existence of the bar as a separate branch of the legal professions rests firmly on the proposition that the client, or his solicitor acting on his behalf, may select a particular individual by reason of his known capabilities. This freedom of choice goes to the root of the practice and structure of the bar.
“…Partnerships would often, we think, be convenient or advantageous to barristers but the point of overriding importance is the public interest.
“We therefore consider that partnerships between barristers should not be permitted.”
A partnership cannot allow clients to select who will do the job. It has to be able to decide who will do what work. It has to be ready to reject clients, because it might otherwise find itself conflicted out of more lucrative work.
Even looking at the issue from the standpoint of self-interest alone the results would be catastrophic for most chambers. Andrew Arden apparently thinks that there are only a few chambers that are so specialist that they would be seriously harmed if members of chambers could not appear against each other. He must be practising in a different world than I do.
It is not just the very specialist practitioners, such as the tax and patent barristers, who regularly represent different interests in the same litigation. Quite apart from major commercial, PI, professional negligence, chancery and criminal sets in London, where it is commonplace for members to be against one another, Andrew Arden should venture out of London to the circuits.
He would see that in many smaller circuit centres there are only one or two sets of chambers, where it is critical that members of chambers are free to act on opposite sides. If partnerships were permitted and became anything like the norm, the perverse result would probably be that chambers would have to become smaller.
Andrew Arden calls for chambers to “keep control of the product. Control therefore means ownership of the product: the product is the work”. Do we really want a situation to arise (quite apart from effectively abolishing the cab rank rule) where a junior member of chambers must get permission of senior members before taking a case, since otherwise the silks might be conflicted out of a more remunerative brief?
Do we really want senior members of chambers to be able to direct juniors as to what work they must and must not do? Do we want to have senior partners in chambers rarely doing any professional work, but taking a large slice of the earnings of others?
What will be left of the independence of the individual barrister, which lies at the core of our profession?
All of this is a long way from denying that chambers need to look very closely at how they organise their practices and administration. Modern barristers are in business, as well as being professionals. They have to be ready to make significant capital investment in developing modern and efficient chambers. Most are already doing so.
The bar has embraced the IT revolution enthusiastically. Many chambers have spent large sums on moving to new premises or refurbishing existing premises. At first, financial institutions and commercial landlords were perhaps a little wary of dealing with a system that was not familiar to them, but all this has changed as they have had more dealings, and now they are very ready to do business with the bar.
All the old rules against advertising and promotion have been thrown out of the window years ago and almost every chambers devotes considerable resources and effort to marketing and promotion.
For the minority of chambers which have failed to face up to the challenges of change, time is running out. The introduction of the BarMark scheme enables chambers, whose administration has fallen behind, to catch up. It provides a blueprint of best practice, designed by the bar for the bar. It will provide recognition for chambers which operate efficiently and provide proper client care.
The first BarMark has already been awarded to Rock Tansy's set at 3 Gray's Inn Square. Many more will follow in the next few months.
All of this has been achieved without introducing partnerships at the bar, with all their attendant disadvantages, adverse to the public interest and to the interests of the bar.
We have preserved the essential attributes of the independent barrister, which distinguish us from the solicitor's profession and which our clients, professional and lay, really value. We do not need partnerships to create a truly modern profession.
Jonathan Hirst QC is a commercial practitioner at Brick Court Chambers and vice-chairman of the Bar Council. He takes over from Dan Brennan QC as chairman on 1 January 2000.
Jonathan Hirst QC responds to Andrew Arden QC's arguments in last week's The Lawyer for a chambers overhaul