Commercial & Chancery: Insider dealings

Although traditionally resistant to change, the bar needs to understand the benefits of the in-house advocate, says Tom Keith

It is difficult to understand why the concept of an in-house advocacy service is so new and why it is not offered by more firms. Part of the explanation is that only the largest firms have sufficient volumes of general commercial litigation work to keep an advocacy service busy. But even then there are large firms in the City and nationally that do have the work and that would, presumably, like to offer their clients an in-house option, yet are not doing so.

The other part of the explanation is the difficulty of recruitment from the bar. For an in-house service to work successfully, it must be able to compete with the bar on quality. To do that it must offer dedicated, specialist advocates.

Solicitor-advocates do not usually have the relevant levels of training or experience, and most do not specialise as advocates. Almost all dedicated, specialist advocates are to be found at the bar and barristers are not, or not yet, flocking to the City. Nor are they setting up their own structures of solicitors and barristers working together under one roof to offer an all-round dispute management service.

Resisting change
It could be argued that the bar collectively is over-restrictive and resistant to change. For example, it now seems extraordinary that there was once no such thing as the advertisement of barristers’ services. It was known as ‘touting’ and was prohibited by the Code of Conduct. After the prohibition had been abrogated it was obvious that, despite the scare stories, the real beneficiaries of it had been not clients, but barristers themselves who wished to avoid the expense and trouble of advertising their services.

It is now well recognised that self-advertisement is a legitimate part of ensuring that the market is as well-informed as possible and consumers of legal services, such as commercial solicitors, are savvy enough to sift such information for themselves. Other changes that were slow to arrive included the payment of pupils, hourly rates, management committees, practice managers, the bar complaints system and direct access.

It is bizarre that there remains a prohibition against barristers belonging to partnerships, whether with solicitors or with other barristers, and absurd that Murray Rosen QC and Ian Gatt QC had to requalify as solicitor-advocates on becoming partners at Herbert Smith.

Even with improved management and organisation, sets of chambers are arguably not the ideal structures for making innovations. As each member is self-employed, it could be said that it is harder than in other structures to find a common sense of direction.

For example, a decision to take on a commercial lease, something done as a matter of course by almost every business in the country, can even in the most eminent set of chambers lead to traumatic controversy, bitter in-fighting and stalemate. The highest earners in chambers are those with the greatest influence, yet with the least incentive to change the status quo from which they benefit.

Now is the time for sets of chambers and individual barristers to be looking at new ways of collaborating with solicitors to offer clients a better service. Barristers should be looking, together with solicitors, to see how they can address the traditional client complaints of cost inefficiency, cost unpredictability and remoteness.

In-house benefits
The development of in-house advocacy could only be to the advantage of barristers, as it would result in solicitors doing less advocacy work themselves. With a barrister on the spot, solicitors will tend to consult them earlier. With the current emphasis on early settlement of disputes, the earlier counsel’s input is obtained, the better for both barrister and client.

In-house barristers will also be used and consulted more frequently during the course of a dispute, as an integral member of the team. Teamwork is what the commercial world both practises and expects; it results in greater efficiency and better outcomes.

Barristers will thus be once more at the heart of modern dispute resolution, which is increasingly moving away from the Royal Courts of Justice, to meeting rooms in the City.

For young barristers there should be opportunities for them to move across to law firms and back again if they want, so that they can learn more about how solicitors work, what they need from barristers, what clients want, and how to work more closely as part of a team.

Moreover, there are presumably young barristers who would prefer to work for a certain income; or with better maternity provision, career flexibility or other benefits; or simply in a place that is more sociable. They should have that choice, even if they only select it for part of their careers.

None of this should have any adverse impact on the independence of the bar or of individual barristers. The Bar Council should represent all dedicated, specialist advocates, be they practising in partnership, in employment or self-employment. The Bar Standards Board should regulate them all.

Independent stance
It is important to recognise that in-house practising barristers are just as independent-minded as self-employed barristers. They are subject to exactly the same ethical rules under the Code of Conduct as self-employed barristers. Solicitors have no difficulty at all with that; on the contrary, they respect it.

It is even arguable that employed practising barristers have greater incentive to be independent-minded than self-employed barristers because their position in relation to their instructing solicitors is more secure. It is easier for a solicitor to dis-instruct or refrain from instructing a self-employed barrister in the future than it is to sack an employed barrister, and difficult advice may come easier from a colleague than from someone who has just been brought in for the case.

The challenge for barristers is to move away from resisting change, toward embracing it. Commercial barristers already do what they traditionally do to an excellent standard; what they need to do now is to become flexible, to innovate, to look for new ways to meet the demands of clients and strive to get ahead of the market instead of lagging behind it.

Tom Keith is head of advocacy at Eversheds