The bar is changing, with new rules and requirements forcing sets to move into the 21st century
Is over-regulation restricting innovative growth at the bar? And if so, why?
Jonathan Hirst QC, joint head of chambers, Brick Court Chambers: There have been a number of instances recently of unnecessary regulation – in particular, the requirement that a client be told in writing at the earliest opportunity of how to make a complaint. it risks starting the relationship on the wrong basis. In this modern age clients who want to complain have no problem finding out how to do so from the website.
Has this restricted innovative growth? Probably not, but that does not justify the regulation.
Luke Parsons QC, head of chambers, Quadrant Chambers: It’s certainly not restricting our growth. One has to acknowledge the fact that the bar as it evolves is fragmenting. Thus, those sets that rely on public funding are having to react to forces and drivers that are not bearing in the same way on sets operating in other practice areas.
Increased bureaucracy is frustrating at times but it’s understandable in the modern business world. To some extent it is necessary as the bar drags itself into the 21st century.
Paul Darling QC, head of chambers, Keating Chambers: The bar is developing its thinking on business models. Regulation is not yet acting as a brake. The Bar Standards Board (BSB) regulation model is unlikely to restrict innovation.
Nigel Jones QC, joint head of chambers, Hardwicke Chambers: I don’t accept the premise of the question. When I started, the bar was a small self-regulated monopoly. This did not encourage initiative and was unfit for a larger profession operating in a more diverse society under a more diverse system of law, with opportunities to work globally and while managing competition from other professionals.
Independent regulators were required. They are, in fact, creating opportunities for growth that the bar would have managed alone. Recent costs and funding changes require us to adapt but will also drive innovation. We have not identified any innovation constrained by regulation.
We don’t see regulation as a threat. Good businesses require good management, and regulatory discipline can help in that. The costs of compliance and monitoring are manageable by successful chambers and the proposed review of advocacy standards does not threaten innovation: Hardwicke has already introduced an internal peer review system to aid best practice.
Is direct public access (DPA) an opportunity for growth or a threat to solicitor referral relationships?
Hirst: Commercial clients have always been able to come to the bar direct via in-house counsel. Chambers will be cautious about taking any step that might imperil their relationship with instructing solicitors. By contrast, for areas of the bar reliant on publicly funded work DPA will be an essential way of attracting work from litigants.
Parsons: For us at the big-ticket commercial end DPA doesn’t apply but direct access does. There’s a trend for corporates to increase their in-house capabilities to cut legal spend and, in turn, while we don’t court it, more work comes to us from them than via private practice intermediaries.
This creates new opportunities for the bar not only to increase levels of direct access work, but also to refer work to solicitors. We know what we’re good at – market-leading advocacy skills mixed with a nuanced understanding of the commercial context our clients are operating in; and we know what our solicitor clients are good at – project management of large legal teams and co-ordinating legal and commercial advice across multiple geographies and areas of practice. The bar is simply not geared up for full-scale litigation so there will always be the chance for us to work with solicitors. But the traditional workflow dynamic of solicitor-to-barrister has changed.
Darling: Public access is no threat to the bar. It has caused no tension and has worked well. Public access does not fundamentally change the balance. I’ve advised in a number of cases direct, at the suggestion of the client’s solicitor.
It is an opportunity for growth, but if, as I do, you see the bar as a specialist and referral profession then it’s not an opportunity for enormous growth.
Jones: The short answer is both, but only up to a point. There has always been an element of client-sharing between chambers and solicitors. Those relationships have always been capable of management and mutual benefit. The ‘threat’ identified only arises with potential repeat business clients, but referrals and recommendations work both ways and in the corporate world I see this as becoming more common. With care, it will be beneficial, not threatening.
The two really big changes are the growth of non-corporate direct access and the new ability for barristers to conduct litigation. These changes are likely to create polarisation: many chambers will chase this work while others will elect to emphasise their consultancy status and may even have policies to discourage or prevent it.
I anticipate real concerns that a significant rise in the conduct of litigation by barristers will increase practice overheads, lead to more claims and imperil mutual insurance arrangements. This will necessarily and rightly mean more regulation to protect the public.
Will multi-disciplinary partnerships become more common?
Hirst: At the criminal bar, this depends on what happens to public funding. If there’s a single payment per case, chambers will only be able to compete by offering a full service, which will mean employing solicitors and paralegals to work alongside barristers. Maybe the same will happen in other areas where there is public funding, such as public family law.
I’m much more sceptical that this is a route the specialist civil bar will wish to follow. The present model has held up well for chambers and our professional clients. The move towards in-house advocacy departments has by no means been universally adopted.
Parsons: Yes there will be innovation as the bar experiments with its freedom to conduct legal business in different ways. But in the end, the bar doesn’t want to take on the work of solicitors.
The boundaries between the members of a legal team are changing, but the individual elements of that team are still required. If chambers started to run large litigation teams with solicitors, barristers and paralegals their cost bases would go through the ceiling and competitiveness would be eroded.
We prefer to concentrate on perfecting teamwork with solicitor and end-users, and not worry too much where the boundaries are as long as we have the hard and soft skills to do the best possible job.
Darling: The publicly funded and the privately funded bar face different issues. The privately funded bar also has sections. Some will adopt new structures while others will not. My hunch is that the construction bar will not, but it’s too early to be sure.
Jones: Joint ventures of different kinds will start to appear. Chambers like Hardwicke already employ law graduates in their practice management teams to help meet the expectations of an increasingly corporate client base. We have no plans to engage staff to conduct litigation.
For those chambers which remain primarily consultants these changes will not affect their current business model of self-employed barristers held together primarily by constitutions and possibly service companies. Incorporation or partnership vehicles may be used for management, tax and profit distribution: this will erode the practice of barristers in the same chambers acting on different sides of the same case (Hardwicke is not alone in finding that international clients increasingly refuse to understand or accept such arrangements) and that will affect income rather than the consultancy business model. Chambers which chase the conduct of litigation will become indistinguishable from small solicitors’ firms and will have to find ways of absorbing larger overheads.
What will the bar look like in five years’ time?
Hirst: The criminal bar will be smaller and more specialist, but I’m optimistic about the specialist civil bar. Despite dire predictions from some quarters we have thrived in the past few years and continued to recruit outstandingly able people. I’m sure chambers will continue to develop their international practices.
This section of the bar will not look very different from now, save that there will be an increasing number of able female practitioners getting to the top; some famous old warhorses will have retired; the profession will evolve and adopt even higher standards of client care and technological expertise; and it will find new ways to collaborate with solicitors and clients.
Parsons: There will be an even bigger disparity between the commercial and public sector ends of the bar. Also, given that we are facing such significant change, the chairman of the bar should be in position for much longer than a year, so they have a fighting chance of grappling with these issues.
Darling: The honest answer is that I have no idea but I strongly believe that there will remain a corps of specialist advocates.
Jones: My guess is that the bar will thrive but be smaller and different. Large firms may accelerate the concept of establishing their own ‘in-house chambers’ but that will remain the exception. The polarisation of the solicitors’ profession has been slower to hit the bar, but it will do so now. The top 30 chambers will become increasingly focused on specialist sectors and selling services globally. Specialist chambers not strong enough to survive independently in this group will merge or be swallowed up. There will remain a vigorous high street bar with a strong local and public service ethic with multiple business models and joint ventures, many routinely conducting litigation.
The secret is: forget the illusory comfort of the past, analyse skills and strengths, adapt, retrain if necessary, establish a business plan and implement it.