The case for partnership
12 June 1999
Not long ago, the bar occupied subsidised premises maintained by the Inns, under periodic tenancies which placed the burden of capital expenditure on the landlord Inns, with self-employed senior clerks and few employees or other common expenses beyond those of the office and a library. The cost of the library was limited by ready access to the Inns of Court libraries, a smaller range of works less frequently replaced and an all-round slower pace of practice.
Today's chambers must cope both with significantly increased revenue expenditure and with substantial recurring capital outlay. Much law is produced digitally and within a short time every set will need to be fully networked, to allow all members routine access to basic library facilities. It is not merely a question of convenience, but of speedier access and more sophisticated search facilities.
The capital expenditure alone is likely to be in six figures; it will additionally require costly computer support services. Other forms of new technology will likewise generate increased costs.
Meanwhile, not only have the Inns raised rents to a market level, but the growth of the bar has pushed many out into the surrounding streets, where long leases, if not freeholds, also generate capital expenditure demands. At the same time, there is the entirely welcome in itself rise in employee rights, including the working time directive, minimum pay and parental rights. The bar takes on pupils who need to be paid a salary, is soon to be subject to a training levy and is urged to provide pro bono services. It is imperative that the bar makes long-term plans to accommodate (literally and otherwise) women who want to combine practice and families.
The bar today has infrastructure and personnel requirements which mean there are common capital and revenue expenses, many requiring a long-term commitment, which involve "expense sharing" that in both quantity and time has hitherto been unknown and probably unimagined. Such long-term expenditure sharing gives members of a set a pecuniary interest - indirect as it may be - in the health and security of one another's practices.
To continue to pretend otherwise is not merely to ignore economic reality, but - which may in the long-term create the more serious credibility problem - to be seen to do so.
Barristers today must compete with firms of solicitors. It is trite that this cannot be undertaken by individuals acting alone. Most chambers are now engaged in some sort of corporate promotion activity through brochures and websites, lectures and seminars, newsletters and other in-house publications and collectively produced externally published works - the Chambers' logo is a commonplace.
Even the traditional means of promoting name recognition at the bar - legal writing - is becoming impracticable to undertake alone: at least three sets are actively involved in, or considering, undertaking these tasks as chambers.
Promotion today is in any event no longer confined to writing and editing. There is also the increasing incidence of "chambers-wide arrangements" (for example panels and bulk discounts) on the verge of an explosion derived from two different sources: legal aid contracts and best value in the public sector.
To secure work today generates yet another corporate demand which is a further cost that in the current climate can only be undertaken collectively.
Once these propositions are accepted, one moves automatically to the question of the relationship that is to govern such commercial activity.
One has to ask if it is realistic or viable, as now, to engage in collective arrangements for funding and promoting professional activity, arrangements which positively exclude any mutuality of interest in the activity itself, for example which are predicated on a series of individual standards of performance (to each of which the collective activity - and investment - is vulnerable).
At the heart of it all is productivity. There are two main aspects of this: working methods and standards. Both are currently self-regulated, subject only to elusive - and unaccountable - "controls" (if that does not over-dignify the "understandings" that operate in most chambers).
The basic working method is the individual barrister, functioning on his or her own: factual analysis, legal research, advising on procedure and evidence, pleading, and written and oral advocacy. These are different tasks, calling for different skills and valued differently in the marketplace - not least because the court is the port of last resort, so that the most specialised and costly activity is the least commonly needed.
The same skills are not needed for every task, or at every stage, nor is it realistic to think that people who are as good at one task are as adept at another. Nor are differential rates for different tasks a solution: unsurprisingly, the highest paid work ends up squeezing the lower.
Solicitors here and lawyers elsewhere work in teams which permit them to spread tasks across a range and an hierarchy of experience (and of charges, which does not reach its peak until long after the bar's equivalent level kicks in). Even if there were some irreplaceable magic in this "whole case" approach, it is not one that enjoys market support.
And in an age in which increased reliance is placed on written arguments that support is never likely to return. The bar needs to restructure its working methods to suit or, to resort to the vernacular, to slice the smaller cake somewhat differently.
The need to control standards arises both as an essential public interest and as economic self-interest. It is nonsense to suggest that chambers must invest thousands of pounds - and the time and creative effort of the most senior and committed members - preparing and qualifying for BarMark, or to obtain some rewarding "best value" status with a local authority or a relationship with a legal aid firm, or present lectures and seminars, only to see it all jeopardised by one member's poor performance.
Partners can review each other's work, and that of their more junior staff, both in terms of processes and outcome. They can also regulate the level of work for which individual firm members are allowed to take unsupervised responsibility. The bar is confined to low-level processes (eg turnaround of paperwork) and the bare bones of a result, privileged information omitted, subjectively defensible; it is vulnerable to largely unchecked personal ambition.
The alternatives are either mutual trust not to harm chambers' reputation and an accepted level of productivity, which merely ensures that everyone is capable of making a contribution to the shared costs. Or - but heretically - an enforced level of output and accountability over outcome: the days when every barrister was as good as every other barrister at anything he was asked to do are long since gone; likewise, the notion that every member is as hard-working as all others is too costly an absurdity to which to subscribe.
The historical "trust" approach does have attractions. It may be said that it is for each barrister to decide for themselves how hard to work and how much to earn, provided only that chambers' financial contributions are met. What business is it of the set, so long as basic rent is paid?
This approach is commercially unreal. The need for substantial capital investment, and the need to commit to long-term revenue contracts or other engagements, require equally substantial commitments by members.
Nor is an acceptable substitute to be found in peer group pressure, chambers conventions, a quiet word from the head of chambers, senior clerk or management committee, or anything like it. These are elusive, some of them are ineffective, they are time-consuming (and, after all, productive use of time is the name of the game), and, where backed up by constitutional or democratic enforcement procedures, they lead to a low common standard reflecting others' own subjective fears. They can serve equally to conceal or protect poor performance and to render individuals vulnerable to criticism which may be unfair or unfounded, even prejudiced.
Substantial levels of expenditure require proper and professional planning: the need for a business plan is a criterion of BarMark. Proper planning requires control: one cannot make a business plan which is contingent on voluntary participation; or, a plan which is contingent on such volition is not properly termed - and cannot be - a business plan. One cannot make people stay in jobs they do not want to be in, one can only keep control of the product. Control therefore means ownership of the product: the product is the work.
I use the term "partnership" as shorthand for any structure that equates to corporate, profit-sharing activity. Permission to form partnership does not equate to requirement.
There are only two substantial arguments against partnership. The first is "cab rank"; the second, self-interest. Perhaps I mean that there is only one argument, which is cab rank, which may be viewed from two perspectives: public interest and self-protection.
Cab rank raises hackles. It is said to be as honoured in the breach as in the observance, with reference rather to the size of the fee than to its original concern, the unpopularity of the cause. For sure, it already suffers from the unadmitted corporatism which exists at the bar when it comes to the choice of counsel to whom to refer or return a case, and of leaders. It has already been set aside for conditional fee arrangements (per the Biddle Report).
The sort of new chambers-wide arrangements referred to above will likewise dent its operation.
Realistically, it is rarely a problem - and in those cases, devices to ensure representation (civil as well as criminal) are easy to imagine and to implement. The areas of law in which there are few barristers tend to be those at the more expensive end of practice, where market forces can be, and are, relied on.
This is also true of self-protection. It has been suggested that there are chambers so specialist that they would not be economically viable if they were unable to act on both sides of a case (something of which solicitors are in any event increasingly - and publicly - chary).
There are three answers to this, if there is any truth in it at all. It is extremely rare and should not be allowed to wag the dog.
At worst, it may mean some reallocation of work as between a small number of specialist sets. And those same market forces will lead to retention of the current chambers system in those areas.
There is a number of other arguments - both against partnership and for it. I believe in the need for specialist advocates and for specialist advisers (and for those who are both). If the bar wants to hold itself out as peculiarly qualified for that work, however, it must be modern in its methods, organised for credible control of standards and economically competitive. No one seriously suggests that it meets all - and some deny that it meets any - of those criteria.
Andrew Arden QC is head of Arden Chambers, a specialist housing and local government set in London.