The commercialisation of the bar

Recently I enjoyed a glass or four of champagne courtesy of my learned friends in one of the top chancery sets. It was a splendid affair in one of the most beautiful buildings in London’s West End. The wine flowed and the nibbles were of the post-modern ironic tendency – you know the sort, where a complete main course of shepherd’s pie, chips and peas arrives on a wafer thin slice of pastry and can be gobbled up in one bite – and as heartburn kept me from sleeping on the train home, I was in a reflective mood.

Times have changed. Not so long ago it was hard to persuade a barrister to buy a round of drinks in the pub for fear of offending the ethical rules against touting – I have a strong suspicion that the excuse lasted much longer than the actual prohibition, but let it pass – and here I was, a solicitor, being solicited with evident enthusiasm, despite the fact that professional competition and rivalry with the bar has never been more acute.

And it is not just the touting rules that have changed. Barristers’ chambers have transformed themselves into something very close to legal professional partnerships, with practice managers, marketing directors and even conference facilities, which makes a nice change from the days when a conference with counsel meant a half-hour struggle to keep the papers balanced on one’s knees while trying to write a note of the advice. Many sets even have chambers in other cities – to my knowledge at least one maintains an office in New York – and they prepare five-year business plans and strategise for growth.

Clients have direct access to the bar and many in-house legal departments now regularly dispense with the solicitor interface not merely on advisory work, but even in litigation. Solicitors, in turn, have earned greater rights of audience and several UK law firms have gone as far as to create substantial advocacy departments, often employing the very juniors and silks whom they would have been pleased to instruct at a more independent bar.

Judges have also adapted to market forces. Realising that at 72 years old many of them still have much to offer society – and perhaps also because of pressure from their wives, who view the prospect of having a redundant law lord mooching about the house with something less than enthusiasm – they have become arbitrators and mediators. One judge even rather surprisingly thought that life in a solicitors’ firm would be less boring than remaining on the bench.

So, how soon will it be before we see a real partnership of barristers created, or before a US firm absorbs a whole set of chambers lock, stock and barrel – well, wig, gown and garters – as its European office, or the first set of chambers creates a captive limited liability litigation support team?
But has any of this actually worked in the interests of the ultimate consumers of legal services? Barristers’ fees for traditional chancery work have not diminished, which is hardly surprising as they carry greater and greater overheads. Advocacy departments have not cut down the cost of trials as many more younger lawyers are now brought in to work within the team. The litigation process has not been streamlined or made more efficient and even the alternatives to litigation, such as mediation and arbitration, appear to be suffering from a drift towards excessive lawyering and commensurate costs.

In the meantime we may have created an environment where it is less easy for the bar – and solicitors, come to that – to maintain the high standards of independence and integrity that are the cornerstones of our profession.

Perhaps all this is inevitable. With such a feast on the table, merely rearranging the chairs around it is hardly likely to do much other than put some of us closer to the meat and gravy and further from the jam.

Perhaps the time has come to accept that lawyers do fall into two professions – the ones who practise law in a business environment and those who serve the wider social community. The rules and governance of each may well need to be different and, indeed, the cost structures of one may not necessarily apply to the other.

And what of the chancery bar in all this? On the assumption that where there is a will there is a hungry young barrister, I am absolutely sure I shall be enjoying hospitality at the bar for a few years more.

Marcus Rutherford is a partner in the litigation group at Reed Smith