Bar wars

In their first interview since they joined Herbert Smith, Murray Rosen QC and Ian Gatt QC argue that the in-house silk model is here to stay. By Jon Robins

Herbert Smith could not be more pleased to have at last bagged a couple of silks to head up its very own in-house chambers. Obviously. It has been on the look-out for at least the last two years.

Murray Rosen QC and Ian Gatt QC have now bade their farewells to the Inns of Court and are securely ensconced at Exchange House. The idea of the first dedicated private practice advocacy unit is finally more than a dream of senior partner David Gold.

But when the two silks, plus new head of litigation Sonya Leydecker, met The Lawyer in the unit’s first operational week, Leydecker was keen not to appear too smug. “It’s an integrated method that we felt was best for certain parts of the service – it isn’t a model that works for everything,” she says carefully. “There are specialist areas that our advocates won’t cover and there are certain types of case where it wouldn’t be appropriate.”

The inference is clear. While the development might be a modest yet significant moment of legal history in the ongoing fusion of the two branches of the profession, Herbert Smith does not want to go upsetting the bar. “By and large, where our clients are comfortable and we consider it is the right choice, we’ll recommend our barristers alongside counsel from the independent bar,” Leydecker explains.

The idea has been a long time coming. In September 2003, Herbert Smith was poised to “throw down the gauntlet to the bar” (as he Lawyer put it). The only barrier was finding the right high-profile silk to join the firm’s partnership and build up a practice. The talk was that the unit would be run from the firm’s conference facility in 5 Bell Yard.

Now the firm has landed not one, but two, QCs. Rosen, the 51-year-old former head of chambers at 11 Stone Buildings, and Gatt, a 41-year-old recent silk from Littleton Chambers, will head up the unit at Exchange House, where there are already some 43 solicitor-advocates. The idea is that some solicitors will stay within the unit, becoming advocate specialists and undertaking no case work, and (the firm hopes) eventually becoming QCs. Other lawyers will receive the benefit of in-house advocacy training. The firm claims that there are no specific targets to expand the service, but it plans to grow its own solicitor-advocate count as well looking to the junior bar for recruits.

The official line on how Rosen came on board goes as follows: Gold and Rosen were having lunch, the topic came up and Rosen expressed his interest. Deal done.

Rosen was an obvious choice. He could not be better acquainted with the firm and reckons that he has acted for Herbert Smith more than 50 times in the last 10 years. Rosen is clearly at home at Exchange House. “People keep putting their head around the door and saying, ’Do you remember that case we did?’,” he says. “Usually I’ve forgotten,” he adds ruefully.

He took his instruction first from Lawrence Collins QC in 1978 and two years later he was called to the bar. It was Collins who made “a little bit of history” of his own (as the then Lord Chancellor, Lord Irvine said) by being the first lawyer to be appointed directly from private practice to the High Court bench. The firm’s other home-grown silk, Julian Lew QC, left the firm to join 20 Essex Street last month. The firm will be glad to restore its silk quota.

As an advocate, Rosen is known for his terrier-like quality. His practice covers commercial litigation, commercial chancery, civil fraud and sport. He has little time for those commentators who characterise the initiative as some kind of attack on the bar. “The word ’independence’ doesn’t have much meaning until you actually try to pin it down,” he says. “Barristers work for solicitors and they get repeat work from solicitors, but they’re still ’independent’ in the sense that they bring in their own judgement, speak frankly and have their own code of ethics. I don’t perceive any difference between those values and the values of this firm.”

Herbert Smith is a step ahead of Sir David Clementi’s plans to lift the ban on barristers and solicitors joining in partnerships, or legal disciplinary practices (LDPs). The silks will have to sit their qualified lawyers’ transfer tests to practise as solicitors. “Assuming I requalify I’ll become a partner,” Rosen says. In that sense, as equity partners, the silks obviously lack the objectivity of the bar. “But in the sense of the value and working methods, we are ’independent’,” he argues.

The advocacy unit is “about taking the best of the bar’s culture and the best of the solicitors’ culture”, reckons Gatt. “We remain as focused as the people at the independent bar, but we have the benefit of being integrated into the team running the litigation; plus we have immediacy of all the support, know-how and experience of the firm.” Gatt’s own experience will complement his colleague’s. His areas of expertise are professional negligence and employment. The barrister is joining the firm two years after taking silk at the relatively tender age of 38. He describes the decision to go into private practice as “an easy one in commercial terms”, but “a harder one in terms of leaving behind my colleagues”.

While traditionalists at the bar take exception to Herbert Smith’s decision to hire silks to kick-start its own advocacy practice, chambers are, at least publicly, being supportive. Leydecker has just written to the heads of chambers and senior clerks at all the principal commercial sets that the firm deals with, explaining how the unit works and confiming the firm’s continuing commitment to using the bar. So far she has received three responses – all positive, apparently.

The firm sees its innovation as being client-driven, particularly for the Americans, who remain baffled by the need to go to two sources for legal advice. Not everyone is convinced. “I spend my life trying to get clients through the door. I’m hardly going to risk losing them by forcing counsel upon them,” one unimpressed litigation head at a rival firm said recently.

Leydecker is adamant there will be no foisting of counsel on clients. “That would just be counter-productive,” she says. “In the US, clients really find the whole system slightly quixotic and can’t understand why they have to go to another part of the City, which they perceive to be slightly old-fashioned, and then have to a have a meeting with someone who hasn’t been in touch with the case.”

Some at the bar query the economics of the Herbert Smith model on the grounds that City firms have huge overheads – which self-employed barristers do not, of course. Rosen says the hourly rates “aren’t going to be vastly different” and that clients will save themselves brief fees.

“Barristers have lower overheads because they do so much themselves – that’s what being in private practice is all about. But there’s a distance between barristers and solicitors and that involves a much higher spend, both by solicitors and by the barrister,” says Rosen. “If the barrister had the ease of access back and forward across the table or in advocate meetings, he wouldn’t be spending so much time doing all sorts of legal work and pursuing avenues which are just irrelevant.”