Twenty years ago the bar was considering its future and engaging the services of management consultants to advise the profession on strategies for the future.
The prime recommendations by the consultants included better business management practices, a more commercial approach to practice and extensive marketing to promote the business. It was suggested by the consultants that it would be appropriate for a set of chambers to spend 1 per cent of its annual turnover on marketing and promotional activities.
Over the years the marketing activities undertaken by barristers and their chambers have increased substantially and have also become more creative as competitors strive to find new ways to promote the business of their chambers. However, from a straw poll, we cannot find any chambers that are spending 0.5 per cent, let alone 1 per cent, of their turnovers on these activities.
The increase in the use of entertainment by barristers as a means of promoting their business has raised concerns in some quarters as to whether the extent of the entertainment breaches the existing bar rules against the giving of gifts as an inducement to clients to send work. It is said that public perception would frown upon such activity and undermine the bar, which is not in the public interest.
The consultation paper issued by the Bar Standards Board sets out opposing views both for and against a more restricted rule on the provision of hospitality by barristers to solicitors and other professionals who might instruct them. In our view it would be a great mistake if restrictive rules were adopted and imposed upon the bar.
It is also our view that the case for the more restrictive approach is based on a misunderstanding of what is actually happening and what marketing really means when it is used in the context of promoting the practices of barristers and their chambers.
The word ‘marketing’ is much misused; when talking about the bar what we really mean by marketing is networking and the creation of networking opportunities, where barristers and solicitors can meet socially to talk about matters of mutual interest, which could be points of law or current affairs or sport.
We are often told by senior solicitors that they are losing touch with the junior bar and want to find ways to meet its members so as to maintain relationships. They also want their associates and trainees to meet young barristers so as to foster relationships for the future. This kind of activity is vital for the development of the junior bar. It is also extremely beneficial for the bar at all levels of seniority.
In this day and age networking is an everyday part of business life and the bar should not be immune to it. At a time when the profession is trying to engage with the man in the street and demonstrate that it is a profession without barriers, it would be a retrograde step to retreat to the top of an ivory tower and distance itself from commercial reality. The public perception here is more likely to find the bar strange and elitist than to find it offensive that the profession engages in networking activities.
A question of integrity
The main objection to networking posed by the consultation paper is a public perception that lavish entertainment is an inducement, or indeed a bribe. But this takes no account of the professional obligations that solicitors must comply with.
The ethics and integrity of solicitors are as high as those of the bar and the suggestion that they could be influenced by the quality of champagne and canapés is quite absurd. As any clerk will tell you, the task of introducing barristers to new solicitors is very difficult, with many checks and references being made before a deal is done. It is only when the solicitor is satisfied that the right choice has been made in the client’s interest that instructions will be forthcoming.
One specific benefit of developing and cementing professional relationships through hospitality is that the very nature of the social relationship enables solicitors and others to better decide which barrister would be suited to which case and client. It is an important means by which solicitors and barristers develop the ability to work cooperatively to the benefit of their clients. It promotes what might be termed ‘beneficial integration’.
If there is a case for saying that entertainment by barristers and their clerks has reached a level that is so lavish as to be perceived as inducing the recipient, then that inducement would be wrong and some form of restrictive measure would be needed to redress the balance. We do not consider that this stage has been reached, but if the Bar Standards Board took the opposite view then we would suggest that guidelines should be issued so as to direct the bar along the right course, rather than instituting a draconian alteration of the rules.
The difficulty that altering the rules raises is that each barrister’s interpretation of ‘lavish’ will be starkly different. The problem the Bar Standards Board faces, like the Bar Council before it, is that it attempts to be all things to all people, whereas the bar is a diverse and segmented profession with competing interests and opinions. One way to solve this problem might be to leave it to the independent professional bar associations to issue guidelines to their members, with the Bar Standards Board having overall authority to approve them. For example, the differing interests of the Commercial Bar Association and the Criminal Bar Association, which are each competing in very different markets, could be taken into account and allowed for.
We feel strongly that, if the lobby for a more restrictive rule controlling the marketing activities of barristers and their chambers were to prevail in a way that stopped all forms of networking, it would be damaging to the long-term interests of the bar, and in turn to the public interest. The bar is a small profession that is totally dependent on referral work. A failure to promote itself, because the rules do not permit it, will undermine seriously the bar’s ability to survive in a competitive market. This is a period of change at the bar and the profession is under pressure from a number of sources, and so restrictive and anticompetitive practices could well hasten its demise.
We are strongly of the opinion that, in the current market, the introduction of restrictive rules is madness. We are all familiar with the saying: ‘Those the gods wish to destroy they first make mad.’ What is it the bar has done to anger the gods so much?
•David Grief, Declan Redmond and Paul Shrubsall are senior clerks at Essex Court Chambers, Wilberforce Chambers and One Essex Court respectively