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28 February 2014
This week, in the wake of Lord Irvines Cardiff speech, The Lawyer is running a special report on his plans for legal aid reform. In the first of five features (see panel) examining their implications, Chris Fogarty highlights the particular threat to the Bar. Having softened up the Bar by sparking off the fat cat QCs row, the Lord Chancellor, Lord Irvine, is now ready to deliver a potentially fatal blow.
Behind Lord Irvines radical shake-up of the civil legal aid system is the underlying message that the Bar faces, at best, an uncertain future.
The Lawyer understands that the Lord Chancellors Department (LCD) is assuming that, for its contracting scheme to work, solicitors will do more of the advocacy work while the Bar will have to ditch its much cherished cab rank rule.
Even the eventual fusion of the two branches of the legal profession is on the agenda, while the LCD will, at some point, test a public defender system.
The wide-ranging reforms announced in Cardiff are not a Machiavellian plot to bring about the end of todays Bar. However, the Government appears to think that if the Bar has to undergo a radical transformation as a natural consequence of the shake-up, then so be it. At the Solicitors Annual Conference, it was widely accepted that if things looked bad for solicitors, they looked much worse for the Bar.
We simply havent had time to think through the implications, said Bar Council chairman Robert Owen QC, after Lord Irvines speech at the Solicitors Annual Conference in Cardiff.
In that speech Lord Irvine effectively scuppered the Bars proposal of a contingency legal aid fund, and made it clear that conditional fees would have to be accepted.
Barristers are, of course, reared in a culture that they are paid, win, lose or draw, said Lord Irvine. For them it would be a culture shock to be paid only if they win, but not if they lose.
Countered Owen: We are worried about this. The essence of using a professional service is you pay for a professional judgement.
Owen is concerned about the commercialisation of the legal system. He believes the laws of supply and demand often sit uneasily with the laws of natural justice.
Of course, barristers have already been facing the risk of not getting paid under conditional fees rules for personal injury cases.
But they were dragged kicking and screaming into the no win, no fee era, and they are still deeply suspicious of the concept.
Daniel Brennan QC, a leading personal injury advocate who has just won the vote to succeed Heather Hallett QC as vice-chair of the Bar Council next year, says it is too early to tell if conditional fees have been a success.
But if conditional fees are expanded to all civil money claims excluding housing, social welfare and immigration cases, the impact on the junior Bar could be severe.
Some at the Bar argue that they could have to wait months or even years to be paid for work they have taken on under a no win no fee arrangement.
Others, meanwhile, counter that legal aid takes a long time to filter through the system, and that young barristers are used to waiting for their fees.
But how well-equipped will barristers be to carry out the intricate risk assessments needed to decide whether they should take on cases?
There are fears that the best senior barristers those who are in the greatest demand will only take on cases they know they can win, setting themselves a low risk threshold level.
It turns them from being barristers into businessmen who specialise in risk assessment, says one Bar insider.
More worrying for chambers as a whole is the Governments thinking on block contracting.
At the moment the Bar Councils professional rules prohibit barristers from even entering into a contract. That could be about to change.
In his report on the Woolf reforms, Sir Peter Middleton backs giving contracts, which includes the costs of disbursements and counsels fees, to solicitors That seems to me to be a sensible approach, says Middleton.
Another option is for the Legal Aid Board to negotiate separate contracts with barristers, with a system controlling when solicitors could employ counsel. Middleton dismisses this suggestion as overly complex and bureaucratic, and the LCD appears to agree.
The Lawyer understands that senior LCD officials believe a pilot project launched by a London chambers last year to test the possibility of entering into a block contract to deliver services at a fixed price to law firms may be the way forward. The pilot was initiated in June 1996 by the Chambers of James Hunt QC when it signed a contract to provide legally-aided advocacy to the James Smith Partnership of Skegness and Park Woodfine of Bedford.
But practice manager Peter Bennett says that the reality has been little less than a nightmare. Its a nearly impossible task, he says.
Difficulties arise in anticipating changes in cases, such as when more cases than expected go to court, taking a greater deal of the barristers time.
This is linked to the difficulty of predicting at the outset exactly what advocacy work will be needed.
Then there are factors such as changes to law firm personnel, with different lawyers having different approaches to their work with barristers.
Bennett, a qualified accountant, says you end up with an incredibly complicated financial model.
He predicts management consultants will have a field day in assisting chambers and law firms to do their contract homework if the Government takes this route.
The bottom line for chambers is that if, for example, they offer a u50,000 fixed price contract but their costs skyrocket to u150,000, they face bankruptcy.
To compound the problems faced by the Bar, Bennett predicts that managing partners of law firms will be tempted to use in-house solicitor advocates in a bid to limit risk, through having fixed income and fixed costs, even though using the Bar may well be cheaper.
Indeed, the LCD expects the civil justice shake-up will create more solicitor advocates and is comfortable with this.
The Governments response is likely to be that systems must be put in place to calculate the outcome of cases, ensuring that solicitors do the best for their clients or face losing their contracts. If there is any hope for the Bar, it is the fact that the Government has yet to work out most of the details although the Government is in no mood to compromise over the big picture.
Im sure the Government would agree that the substance of its policy is far more important than its presentation, argues Brennan.
So far that has proven not to be the case. The Bar, for example, is yet to have an opportunity to talk to Lord Irvine about his plans, although journalists have been briefed ad nauseam.
Lord Irvine believes legal aid is unpopular because of the perceived sins of lawyers, and is counting on public sympathy to help him through the professions opposition.
He has been hammering home the message that any opposition from lawyers to his plans will be fuelled by blinkered self-interest.
Last week Geoff Hoon, parliamentary secretary at the LCD, reinforced the Governments message when he opened the College of Laws first course for Bar students.
He said the Governments approach to legal reform was not will this harm the Bar? but will it help more people?
One thing I am certain of: there will continue to be an independent Bar, added Hoon.
What is also certain is that those barristers who still believe they have guaranteed income and a job for life are drinking at the Last Chance saloon.