Earth to Lightman

Chris Owen on why the bar is baffled by Mr Justice Lightman's recent attack on the legal profession

Mr Justice Lightman's recent savaging of the legal profession demands a response. His views were not all bad – he did have three good things to say: about alternative dispute resolution (ADR), the Woolf reforms and human rights legislation.

However, the thrust of his lecture was that firms of solicitors had lost sight of their professional duty to protect clients' best interests, by insisting on advising and conducting any litigation themselves rather than using the bar – the one-stop shop service. Also, that the bar was full of average advocates, the silks system was a licence to print money and juniors led by silks were as overpaid as their leaders.

On top of these general criticisms, Judge Lightman had a swipe at those running the practices of barristers (senior clerks, chief executives and the like) who he says carry out chambers' wishes as enforcers by insisting to junior counsel that any leading work must stay within the chambers and not go outside to other silks. As a retired senior clerk from a large well-known set, I found that comment disturbing and, certainly from my own experience, untrue.

Judge Lightman makes a series of valid points concerning the service that lay clients should be able to expect from the legal profession, but makes a case that as law firms and chambers are now run as businesses, everyone has lost sight of their main duty and the client is the sacrificial lamb.

This is where I strongly disagree with many of the allegations raised, and I am sure many lawyers are equally baffled by Judge Lightman's attack.

Having instructed the bar in the 1960s and 1970s, and for 25 years after that worked closely with the bar, I feel very much in touch with the views of chambers, solicitor clients and other agencies involved in the litigation process. I can honestly say that, over these years, not once have I been told to ensure all leading work remained in chambers if there was a more suitable silk for the client elsewhere, as Judge Lightman suggests to be the case.

Neither have I been told to charge fees that involved any outside influence, such as the cost of running chambers. I have only ever quoted fees to a solicitor client on the taxing master-approved basis of the type of case, the seniority and expertise of counsel, the amount of preparation time, the expected length of hearing and the importance of the case to the client. I made no distinction whether the case was funded privately or not – the method of calculation was the same. It may be the case that a privately-funded case was in some ways more attractive, but with the cab rank rule still in force, it was always first come, first served.

In my years of fee negotiation with solicitors, counsel hardly ever asked me what I had in mind and they certainly never tried to influence me to obtain a higher fee for their services than was appropriate. Most counsel are very happy to leave fees to their much more experienced clerks.

Solicitors are very good at fee negotiation. They have a clear duty to their client and always argue their way to a satisfactory fee for everyone. A counsel's clerk is simply unable to put a gun to a solicitor's head; if one did so, the work would soon dry up.

Judge Lightman said: “One continuing luxury is the silk system.” An interesting comment as I write this on Maunday Thursday, and see that the Lord Chancellor has yet again promoted over 120 junior counsel to the front rank. Despite recent attacks by seemingly everyone about the silks system and who should appoint etc, it seems odd that at the very moment when their very existence is under threat, more QCs have been appointed over the past two years than ever before. The number used to be 30-40 a year, then regularly 60-70 – now it is 120-odd. Why? If the Lord Chancellor agrees with Judge Lightman (which he certainly shows no hint of in his annual address at the House of Lords' swearing-in ceremony), he has a funny way of showing it.

Having clerked more than 20 silks in my past career, I can say hand on heart that in my opinion they are good value for money. I cannot equate the many references to “inflated fees” that Judge Lightman litters his lecture with when compared with the reality of daily clerking.

In my experience (which includes what clients have told me), silks often complete a case more quickly than most junior counsel due to their expertise; they often freeze their charge-out rates to be competitive and are certainly far removed from the type of silk who clearly annoys Judge Lightman when he has to see their brief and refresher fees to assess costs.

Not many silks have charge-out rates such as those mentioned in The Lawyer recently for eminent commercial silks – most charge, through their clerks, the going rate for the job. The marketplace actually decides. If a solicitor client thinks the quote is too much, it will take its custom elsewhere.

Times have changed: silks do cases on their own and the two-thirds/one-half fee for juniors, in my experience, has largely gone. Juniors are paid what they are worth based on what they bring to the case. I cannot believe for one moment that an instructing solicitor with any objection to the fees being earned by counsel, with the pressure of fees as it is these days, would not say so. Lay clients for many years (let alone insurance companies and the Criminal Prosecution Service and Serious Fraud Office (SFO) etc) have all demanded, quite rightly, value for money.

Beauty parades, in which a client asks to meet several juniors or QCs before it decides which one to instruct, are not uncommon. Forty years ago that would not have been dreamt of. The early quotation of fees, not just as a result of the Woolf reforms, is commonplace. The justification of fees and time recording are normal.

Judge Lightman makes another point about teams of lawyers acting in cases where perhaps it was not necessary to have so many on the case. He sees his own list of cases, of course, and I cannot comment on that, but what is true is that more and more cases require a large team of lawyers and counsel, both in civil and crime. In SFO work, for example, it will often involve police and accountants all working in the preparation of a case. Here the barristers will be on fixed hourly rates, fixed refresher rates and no brief fees. In addition, beauty parades of counsel are the norm. Enlightened SFO.

Judge Lightman seems to suggest that the young lawyer wanting to be a barrister should be prepared to enter this “honourable profession… for whom money is not everything”. That seems to suggest that barristers must accept their lot. The bar has faced massive cutbacks in recent years in the fees its members can charge in publicly-funded matters, criminal rates have been frozen or reduced, family rates slashed and legal aid in most civil work abolished. It is not a pro bono profession, despite record numbers doing that type of work. Not every barrister is a rich one. For every well-paid commercial junior, you can find 10 at the common law bar earning the same as a plumber.

The claim that the bar and law firms are running businesses is a fair one – but it has to be that way. Professional rules mean there is no other way to get through Lexcel or Barmark/quality mark without a corporate image and practices to match. The client comes first in all these standards. Client complaint systems and equal opportunities abound. The paperwork needed to keep the business afloat is now massive. Risk assessment is very important for law firms. The assessment of whether to do a conditional fee arrangement case is equally important for all lawyers – get too many of those wrong and you are broke.

It may be that barristers, solicitors and judges wish times had not changed but they have. There are many safeguards and disciplinary systems in place to make sure that lawyers do not trample over the wishes of their clients or overcharge. If they do, they will get no work.

The one telling comment by Judge Lightman and his wish for a more level playing field on costs and an equal calibre of representation on both sides of a case, is the abolition of publicly-funded work. In my mind, despite protestations to the contrary from the Government, that has done more to damage the chance of the man on the Clapham omnibus from getting fair treatment than any argument on the quality of representation, or the fees charged for it.

Chris Owen is an independent consultant to the bar and a director of LawLand Services