Put clients first – not barristers

The new chairman of the bar Timothy Dutton QC has begun his year in office by proclaiming the primacy of his profession. While at the helm, he told The Lawyer, he plans to “put the barrister first” (7 January).

As a barrister myself, I could be forgiven for delighting in this news. Regrettably, like many a good lawyer’s advice, Dutton’s message came with a proviso. For it seems that he did not intend the ‘barrister first’ principle to apply to those who have swapped independent practice at the commercial bar for life as an in-house advocate at a City law firm.

On the contrary, Dutton asserted that the bar should “stick to the current referral model”, and claimed that some law firms are not instructing external counsel until their in-house advocates make mistakes.

It may be that the primary targets of Dutton’s remarks are solicitors’ firms practising criminal law. But, even if that is the case, he made no exception for in-house advocates at City firms. For the time being, therefore, I must assume that I am not so much primus inter pares as barrister non grata.

Given that around 11,500 of the 15,000 or so barristers that Dutton represents are self-employed, it is not hard to understand the rationale for his staunch defence of the independent referral model. But his apparent attack on in-house advocacy at City law firms is rather less easy to fathom.

For a start, the number of in-house advocates in the City is tiny. So far as I am aware, only Denton Wilde Sapte and Herbert Smith hold groups of dedicated in-house advocates. Other City firms house individual advocates, but I doubt that we would fill the annexe at Dutton’s chambers, Fountain Court.

There is no question that in-house advocates provide a valuable legal service to commercial clients. One of the principal advantages is in-house advocates’ accessibility and ability to assist at short notice.

This accessibility also lends itself to early and frequent involvement in disputes. Clients and colleagues regularly contact me for advice when court proceedings are little more than a distant sail on the horizon, before they engage the other side at close quarters.

Similarly, when disputes lead to court or arbitral proceedings, both clients and solicitor colleagues know they can pick up the phone and pick my brains with an ease and informality that would be impossible if I were in chambers. Clients also know that in-house advocates will prioritise their work. Barristers in independent practice are obliged to juggle commitments to numerous law firms, and cannot give priority to an individual firm’s clients in the way that its own in-house advocates can.

Then there is the contentious matter of cost. The lazy assumption is that in-house advocates are more expensive because their charge-out rates tend to be higher.

In reality, the streamlined service that in-house advocates provide can generate real savings, particularly in solicitors’ time. We are also often dispatched alone to hearings and meetings that would usually command the presence of both counsel and a solicitor.

But do not get me wrong. I may work in-house, but I am not claiming that the in-house advocacy model is the shape of things to come. It may or may not be. Nor am I contending that the independent referral model has had its day. It continues to provide access to a deep well of rare talent.

My point is simply this: appropriately qualified and well-managed in-house advocates can provide real benefits to commercial clients in the right cases.

And it is the interest of clients, not the models by which lawyers happen to arrange themselves, that should be the paramount consideration.

Which, as Dutton might have said, means putting the client first.