Raising the bar

The prospect of Clementi’s changes may have got a few pulses racing, but Robert Englehart QC’s advice is: carry on as normal

Before Christmas last year, anxious mutterings were to be heard in the inner sanctuaries of the Inns of Court and the Bar Council. It was said that Sir David Clementi had been asking some searching questions. He had even gone so far as to ask about the nature of the relationship between the Inns of Court and the Bar Council. If there was ever a disagreement, which one would have the ultimate say in the regulation of the profession?

This question caused consternation. Nobody seemed to know. It just worked. Then a 1987 agreement between the four Inns of Court and the Bar Council prescribing their respective roles was unearthed. The problem with this agreement was that, not only was it expressly said to be not binding in law, but it was also cancellable by any inn on 12 months’ notice. It could hardly rank as the last word in constitutional affairs. And then there were other mysterious bodies such as the Council of the Inns of Court, a body which to insiders was most important, but to those not in the know, such as the vast majority of the bar, a body of whose existence they were blissfully unaware. And what about the Joint Regulations Committee, supposedly a joint committee of both the Bar Council and the Inns of Court, but in reality treated as a Bar Council committee in which the Inns of Court play no part at all?

Clementi was obviously baffled by the constitutional structure of the bar. And not only as regards the formal structure. It was even suggested that he would be forbidding benchers who are judges from having lunch in an inn with benchers who are barristers. He could not understand how, in these Article 6 days, the judge could go off to lunch with one of the barristers while the opposing barrister and the solicitors were left to fend for themselves at the local Prêt-à-Manger.

In the event, there was a collective sigh of relief. Clementi’s proposals were very much ‘big picture’ ones. He was not going to concern himself with matters such as lunch. He remained as baffled about the governance of the bar as everyone else, but his solution was not to change anything. In his view, the answer lay not in his proposing any changes at all to the way the bar is governed; rather, the answer was to create a new body to which all governing organs of the legal profession, including the Bar Council, would be answerable to. He opted, in the jargon of his proposals, for model B+, a description that was not intended to be, but could perhaps be understood as, a grade for the merits of the proposal.

There would be a Legal Services Board for all the legal profession, a sort of Oflaw. One of its functions would be to review the way the bar is governed. Thus, in due course it seems that exactly the same submissions will have to be dusted off again, although this time it will be Oflaw that will be listening rather than Clementi.

When it will happen is anybody’s guess. For the average practitioner at the bar, one may wonder whether the existence of a body above the Bar Council and the Inns of Court will, in practice, make any difference at all to their professional life. The proposal does look, at least at first sight, rather like the old and now discredited financial services structure, with a number of different so-called ‘front line regulators’ and one supervisory board. Clementi acknowledged the similarity, but in his view there were sufficient structural points of difference between the legal and the financial services industries to make the analogy inapt.

Unsurprisingly, given his professional background, it was Clementi’s general thesis that lawyers should be much more commercially orientated. In his perception, the notion of a potential conflict between lawyers as professionals and lawyers as businesspeople was “misplaced” – whether a litigant who has been treated as a simple money-making opportunity by their lawyer would agree is, perhaps, debatable. In any case, it is this commercial philosophy that underlies the suggestion of legal disciplinary practices (LDPs). It is hard to see why they should be called disciplinary, but the idea is that barristers should be permitted to team up in partnership with other kinds of legal practitioners such as solicitors, licensed conveyancers, notaries and so on to create a one-stop legal shop. Indeed, the owners of the shop need not even be lawyers. Perhaps pension funds will do better investing in lawyers than in shares or property. Clementi stopped short of proposing the abolition of the current bar rule that forbids partnerships between barristers. Indeed, while the language of his report suggests that he does not agree with the rule’s retention, he does see merit in the present structure of chambers consisting of a number of sole practitioners sharing expenditure.

It has to be said that if barristers are permitted join LDPs as partners, it is hard to see how the bar’s ban on partnerships can remain. Would a set of chambers be converted into a permissible partnership LDP if one solicitor advocate is invited to join 30 other barristers? Some at the bar no doubt favour abolition of the ban on barristers being partners; nevertheless, I suspect that one of the main reasons why most barristers come to the bar is precisely because they relish being individuals answerable only to themselves, rather than being part of a collective office. Even if the ban is scrapped, many, if not most, barristers can be expected to remain as sole practitioners – that is, unless commercial pressures squeeze out these touching relics of the past.

Robert Eglehart QC is a barrister at Blackstone Chambers