Bar overplays independence card

This is a copy of my recent article for Legal Cheek, a legal news and comment website full of lively, provocative and informative material.  And this too …

On Monday the listed Australian law firm Slater & Gordon kicked off the Legal Services Act (LSA) era in earnest when it announced its market-wowing £54m acquisition of Russell Jones & Walker. Amid all the excitement about who could be next, it’s easy to forget that it’s not just law firms considering the potential threats and opportunities arising from the fast evolving landscape, but also barristers’ chambers.

Not that barristers chambers are exactly in the hot seat when it comes to LSA-led change. Being predominantly a referral-driven business, chambers tend to adopt a “wait and see” approach based on any changing requirements arising from what the referring law firms are doing. Of course, there’s risk in this approach as it relies on sets being sufficiently agile to adapt rapidly when required.

Chambers’ ability to move fast is far from a foregone conclusion – in no small part because the set-up of barristers’ chambers is unlike most other commercial organisations. Steeped so deeply in tradition and moulded around the expectations of the barristers within it, the chambers structure is inherently ill-suited to change, particularly of the swift and radical variety.

Among the characteristics we often hear cited as the Bar’s key strengths are the fierce independence and individuality of its members: independent thinkers working in their own individual ways to unlock that genius, providing uniquely innovative ways of dealing with the difficult challenges presented by advocacy and specialist legal practice. This is what sets the profession apart, we are told, in enabling the breathtakingly high standards of intellectual ability to come to the fore to the benefit of clients and, ultimately, justice.

While I have no doubt that there is some truth in this, I cannot help thinking that the independence card is rather over-played. Of course it helps to provide high professional standards for each practitioner to be able to work in ways that they feel are optimised for their individual needs; like a writer might prefer to sit in front of their favourite view in order to be inspired, or an artist perhaps painting to music of the appropriate mood.

In this respect, individuality is undoubtedly a strength. But it can also be a critical weakness in a climate where one of the emerging challenges will inevitably be the ability of the organisation to adapt quickly and seamlessly to meet demands from the market to provide uniformity in quality and methods of service.

Here, individuality and independence can really hold a business back – especially if they are applied gratuitously. For example, does a barrister’s individuality really need to prevent them from giving a prompt response to an enquiry about availability, the timing of a piece of work or a simple, unqualified answer to a request for a fixed fee quote? Is it really independence that precludes the prompt provision of billing details in a form that fits in with the organisation’s and client’s requirements?

It is too convenient to accept that a hugely variable standard in provision of such essentials is inevitable, given the characteristics of barristers. The legal market seems to roll with it; I wonder, though, how many other industries would be so forgiving, especially with the effort required to conform to some basic organisational principles pretty minimal?

The tendency towards the individual approach is compounded by the structure of chambers and the resulting organisational culture. A set of chambers is a simple business structure consisting of a group of self-employed barristers billing and receiving payment for their own fees on an individual basis. From their receipts they pay a contribution – typically around 15% – towards shared “chambers expenses”, covering normal business overheads such as rent, staff, marketing and IT.

But is it really right to describe these as expenses in the conventional sense of the word? There is no doubt that, in terms of mechanics, each member does indeed part with a sum of money (usually by way of monthly direct debit) in return for a service. Thus from their point of view, there is a sense of paying a fee for a service – and with that comes the resulting entitlement to their “pound of flesh” (which is understandable: as fee paying customers, why should they not be entitled to expect service in a form that is tailored to their personal preferences?).

But this approach doesn’t sit quite right in the context of commercial organisations. In reality, barristers clerks and chambers administration staff don’t provide personalised services in the same way as you would expect from, say, a hairdresser (where you might specify what style you would like) or perhaps a taxi driver (to whom you might express a preferred route or ask for the heating to be turned up). There are two crucial differences. First, in the chambers scenario, barristers are paying for a shared service that comes from restricted resources that need to be used prudently and fairly in order for the system to function. Secondly and more importantly, chambers provides an enabling service; an essential service without which barristers would be unlikely to be in business at all.

Accordingly, I suggest that a more realistic way of looking at the situation would be for barristers to consider themselves part of an organisation where they are paid 85% commission on their sales. That’s a pretty good deal in most businesses. Putting the payment process to one side, this concept better reflects commercial reality. It also demonstrates recognition of the value of being part of the organisation and serves to promote a mindset of strong commitment to the group and a degree of conformity with its way of doing business, with the ultimate goal of providing services to clients in the most effective and competitive manner.

Many law firms are currently having to face up to some difficult threats to their market share, profitability and ultimately survival. Radical changes in strategy and operations are being considered. In contrast, a minor cultural shift and a little administrative effort may well be all that is needed for the Bar to keep pace comfortably with the demands of the marketplace. There is no reason why the Bar’s treasured traits of independence and individuality should not continue to be potent attacking forces, but unless applied thoughtfully they could contribute to the scoring of a decisive own goal.

What they don’t teach you at Bar School

Let’s be clear here.  I genuinely do not know what they do teach at Bar school.  Some law stuff and a bit of advocacy I guess.  I’ve never really known much more than this and I’m not sure if it’s relevant to my day-to-day business of managing and promoting a set of chambers. If it is, well, too late …

I know that becoming a barrister involves a pretty long slog academically followed by the immensely tough challenge of finding a pupillage and ultimately a tenancy.  There can be no doubting the rigour of this process.  Having come this far, a barrister can be forgiven for assuming that they have done all the hard work and that success in practice is a foregone conclusion.  It is indeed an impressive achievement, however it arguably leaves them ill-prepared for many of the fundamental challenges ahead such as the practical, real world application of legal expertise, developing relationships and building a successful, progressive and sustainable practice.

The weakness of pupillage

These vital skills need to be developed from beyond the formal education process, which starts with the transition phase from qualification into practice, pupillage.  This involves spending a year under the supervision of a small number of different barristers who meet the “pupil supervisor” requirements.  These requirements are hardly stringent and the supervisors themselves are there by virtue of an identical process, with equally little guidance in the non-academic aspects of legal practice.  They may or may not have since picked up the right commercial and practical skills to be considered a good example, yet this does not seem to be a factor in their eligibility for this role.  This makes it something of a lottery whether or not a pupil is placed with someone able to set the right example for someone newly facing a changing legal marketplace.  The problem here is that the pupillage process is regarded as one in which the pupil is encouraged to follow their supervisor, rather than view them in any way critically.  In this respect, it is wrong to assume that the supervisor’s strong reputation or financial success means they are someone suitable to set an example: many outstandingly academic barristers have in the past achieved such successes in spite of practical shortcomings.  I doubt that the modern marketplace will prove to be so forgiving.

I ought to add here that I am not for a moment advocating that a pupil be vocally critical of their supervisor – that would be a surefire form of career suicide - merely that they should look to learn from their weaknesses as well as their strengths.  You can be sure that they will have weaknesses.

Barristers have been blindly following each other through this system for generations, so it is no wonder why the Bar is perceived as a  group where change comes very slowly.  But evidently this tried and tested formula is a successful one, despite my misgivings, as here we are in a legal marketplace where the Bar holds an enviably strong position.

What I do know is that if I were starting in practice now, I would want to see leadership, guidance and critical appraisal from a variety of angles in the early stages of practice, rather than simply to follow a self-perpetuating system led by those who possessed what may have been a formula for success at the Bar ten or fifteen years ago.  This is not to say those individuals would not be equally successful if entering the Bar now, but the question is how do we know ?  This is not, I suggest, something that should be left to chance.

Ethos

So what is the right way to go about building the foundations of a practice ?  Most of the genuine success stories I have seen at the Bar have not been down to a clever marketing and business development strategy.  Nor from wining and dining solicitors or social-climbing among the legal fraternity.  Not from being the cleverest lawyer out there.  And not even from buttering up the clerks (although I would not discourage this admirable practice …)

No, most of the examples I can think of of genuine, sustained success at the Bar have one thing in common: a fundamental ethos of pure, uncompromised focus on, enjoyment of and passion for solving legal problems – whoever the client, whichever firm instructing, whichever court or tribunal, whatever the state of the instructions and whatever the fee or funding basis.  Such an approach soon makes excellence become an enjoyable habit.  This in turn generates an appetite for work that enables volume and thus variety of opportunity for increasing experience as well as exposure in the marketplace: optimal visibility to professional & lay clients, both instructing and opposing, to judges, other barristers, witnesses and other observers in court.  They all have a voice and with this approach applied consistently the potential for reputation growth increases exponentially, maximising referrals, building experience while in the meantime excellence becomes the norm for your way of practice.

In contrast, seeking to selectively impress, to manufacture a practice, to chase the big-ticket work or the glamour law firms creates a distraction from the real business of committing to excellence.  The practice that you seek will find you naturally in time if you make consistent excellence in service the priority over the temptation for seemingly shorter routes to success.  Of course it remains essential to devote time and effort to properly focused marketing and sales activities, but it is important to remember that this process will only ever bring opportunity (in the singular – you usually get only one chance to impress, before clients look elsewhere in this crowded market).  This in itself will not build a practice for you.  Only referrals will do this and these come from using opportunities to provide exceptional service experience for your clients.

Client Focus

Client focus is a phrase that is often quoted as the key for success in legal practice.  Genuine focus on your client’s needs.  But we all care about our clients, don’t we ?  Well, what does client care really mean in practical terms ?  Here are a couple of random illustrations :

• A business client needing some advice in order to make a strategic decision at a board meeting tomorrow needs the best advice you can give, for that purpose, before that meeting.  Your perfectly researched detailed opinion on how to win at trial, delivered the day after tomorrow, on expensive paper with pretty spiral-binding, may be very clever but its value to your client at this point is likely to be limited to wrapping fish and chips. (And that’s only if they can remove the binding, which can be quite tricky).
• When a client asks for an invoice, this is not an insignificant, irritating bit of admin that is subordinate to the real business of legal excellence.  In fact, they need to know quickly how much money needs to come out of their account, because cash flow is rather important to the running of business or personal finances.  Both solicitor and lay client may well have systems in place for processing payments with people being paid to run them who may be wasting time waiting for this information.  It is important to them.  More so than it may obviously appear to you.

Diverse and simplistic examples perhaps, but deliberately so.  The key message is clear.  Taking the trouble to understand and act on what genuinely matters to your client is the essence of what client care is and this comes in so many more forms outside what you might regard as your primary focus.  Possessing a mindset where you can visualise what your client needs – as opposed to what you want to provide to them - is a key skill.  When applied, it gets you noticed and can provide a genuine competitive advantage in the marketplace.

Practice Development

Practice development is another one of those phrases that sounds like a good thing to do, but nobody quite knows what it looks like.  Of course, success in practice development depends very much on each individual’s goals and aspirations, but I think common goals for most barristers might be progression, challenge, variety and financial security.

Progression is a difficult one to put your finger on.   Milestones can be identified specific to each practice area and can usually be defined by levels of complexity, value or perhaps tribunal, with small stepping-stones between one stage and the next, with a leap of faith being required at some point on the part of a client prepared to send you into personally uncharted territory.

Let me make clear that fee income is a very flakey way of measuring success.  I wish I had a pound (no, let’s make it £1.50 and increase it to £1.75 next week for no justifiable reason…) for every time a barrister suggested “progressing” their practice by increasing their charging rate.  Increase the rate to increase income, an obvious route to success – provided you are operating in a completely ignorant marketplace.  Perhaps this was once the case but right now the legal marketplace is anything but ignorant and indeed is rapidly increasing in sophistication.  This sort of short-term approach to fees can be extremely damaging, particularly in the earlier years of practice and any modicum of commercial reasoning dictates that it should be resisted.  The fact is that the market will dictate the sort of fees you can charge and if you can progress to the right areas of the market, the work will attract higher fees.  But you have to do the hard work to get there first.

The simple answer to what really indicates the successful development of a practice is referrals.  It starts with repeat business from a particular client, developing over time into more widespread “word of mouth” referrals.  There can be no more clear and reliable indicator that you are doing something right than if someone chooses to put their trust in you again, and more so if they put their reputation on the line to recommend you to someone else.  This is what every new barrister should have foremost in their mind in their early years as the most important yardstick for progression and as they key ingredient for a solid platform for long term success.  I really cannot stress this enough.

It’s really quite simple, isn’t it ?

In putting together this post, I have simply and somewhat randomly set out what have seemed to me over the years generally to be the most common issues of weakness displayed by barristers in practice.  To me, they really do seem obvious and straightforward, to the extent that reflecting on this post I am wondering why I even need to spell them out.  I mean surely during the course of one of the most arduous and demanding journeys to becoming a member of such a highly respected profession, someone must teach them this stuff.  Mustn’t they …?

The Bar – Time for a Culture Shock ?

This is a copy of my recent article for the Pupillage Blog, which I can highly recommend as an insightful, engaging and comprehensive online resource for aspiring barristers.

I have for some time been considering writing about my thoughts on practice at the Bar, from my perspective as a barristers’ clerk, as a guide for new or aspiring barristers.  This process has, perhaps surprisingly, been hampered by considerable hesitation.  I have found myself thinking along the lines of: “Me, a non-legally-qualified clerk ? Telling the guv’nors what to do ?  Qualified barristers, the cream of the legal profession…?” and so on, wondering whether it is my place at all to give advice to such highly intelligent individuals.

This is all, of course, complete and utter nonsense, yet I am far from alone among my peers in such musings.  It must say something significant about the culture at the Bar that such doubts are troubling those who have for years occupied the “coal face” of service delivery in the profession and whose role involves close and constant contact with all sections of the marketplace.

The thrust of this introduction therefore is that in order to think about how best to progress in the future, following the approaches and attitudes of the past really is not the best start.  Perhaps it is time to realise that the culture at the Bar is restricting its progress at a time when it badly needs unfettered ability to adapt to the increasing demands of the market.  As ever, prevention is easier than cure, which is why understanding these issues at the start of a career can prove invaluable in unlocking the potential for a successful practice.

The good news is that none of this requires any kind of revolution or rebellion against the established order.  It doesn’t need anyone to stand up and shout “no !” to the establishment at a time of their career when they are, quite justifiably, keen to conform to the accepted order of the profession to which they have worked so hard to gain entry.

It is simply a question of adopting a mindset that is free from the assumptions of the past, thus liberating them to go about the business of providing a service based on what the market wants to receive, as opposed to what the provider wants to give. In reality the two are not that far apart, but the gap between them is becoming more and more exposed in an increasingly customer-led environment.

The starting point for redressing this comes with the recognition that the Bar is fundamentally a service industry and while reliant upon high levels of professional expertise, has much in common with many other lines of business that we all deal with in everyday life.

Why should it be that so many barristers find it hard to see things from a client’s perspective by drawing a parallel with their own experiences of, say, having their car serviced ?  Most likely, they would not be able or inclined to service their own car, so would need to entrust the job to someone with expertise that they don’t have themselves. I suspect they would want to know when the job would be completed and that it would be finished on time, as promised.  They would want to be confident that the work was being carried out by someone suitably qualified.  They would want to know how much it was going to cost and the basis on which the price was calculated.  You can be sure they would demand a good explanation for running late or going over-budget.  Ultimately, they would expect their car to be running smoothly and to have any follow up queries dealt with promptly and without charge.

This is a simplistic comparison, I know.  Yet for many years I have seen evidence in practice of an instinctive expectation by barristers that clients will accept, without challenge, situations that would be completely unacceptable to them if roles were reversed.  To make matters worse, they know full well that the vast majority of these clients are themselves lawyers, which makes these expectations even more unrealistic and, when you think about it, completely irrational.

But these are not the type of people who you would generally describe as irrational, yet here they are clearly displaying an irrational mindset.  Difficult to change, perhaps, when it is a deeply-rooted legacy of generations of flawed culture.  But not at all difficult to avoid in the first place for those to whom it is visible and recognisable as a dangerous obstacle.

The Legal Services Act – what now for Chambers ?

My article in the Sept 2011 edition of Clerksroom Magazine, a free monthly publication for clerks and managers in barristers’ chambers:

You’d have had to be on some pretty faraway planet not to have heard of the Legal Services Act 2007 (“LSA”) and its anticipated impact on the legal marketplace.  “Tesco Law”, “deregulation”, “Big Bang” are just some of the (rather misleading) descriptions you will have been unable to avoid in various media.

Alongside this, we have seen news of a variety of interesting developments in the legal services market.  The prime example is Quality Solicitors – a national network of solicitors’ firms, effectively operating as franchises under the QS brand.  It has been heavily advertised (including a TV advert featuring Amanda Holden) and is in the process of setting up “Legal Access Points” at counters in around 1000 branches of WH Smith, where they offer free first consultations.  Its stated focus is centred on providing easy access to lawyers for the public and high standards of customer service.

 

We are also seeing signs of expansion and consolidation in the marketplace.  A good example is Parabis, a group that has rapidly evolved into a £100 million business through the acquisition of solicitors firms and non-legal insurance related enterprises.  Parabis have stated their intention to convert to an alternative business structure, as have several other high profile firms which have cited external investment for growth as the driving force.  And of course there is the prospect of Co-Op and other retailers (not Tesco, so far) entering the market.

 

In the context of the history of the legal marketplace these are undoubtedly extreme innovations, however it is important to point out that they are not in any way dependent on the LSA (the relevant provisions of which are yet to take effect).  They have developed within the existing regulatory framework.  Businesses are pushing the boundaries of existing ways of providing legal services, even before the doors are open to alternative structures and non-lawyer ownership.

 

So, increased customer focus, market consolidation and external ownership: what has all this got to do with running a barristers’ chambers ?  After all, barristers just want to be barristers, not entrepreneurs.  They want to get on with the business of being independent specialist legal practitioners.  More barristers aspire to being Sumption QC than Lord Sugar and I doubt we will be seeing many appearing on Dragon’s Den.  For that reason (if you’ll forgive me …) it is hard to see barristers chambers taking such large leaps to come up with new innovative business structures.  And why should they ? The tried and tested virtues of quality, specialisation and value have proven to be effective even by the most modern commercial standards.

 

But what the Bar will have less control over is the huge potential for change in the dynamic of the market in which we are operating.

 

Consider then the conversations I’m sure many of us have had with solicitors about that “demanding client”, where they apologetically ask for that little bit extra – more work, within a shorter timeframe and for less money – on the grounds that the client is “a big corporate” throwing its weight about.  (You may, like me, have found these conversations more frequent of late).  Now consider what business might be like when this type of client literally becomes the instructing firm, by way of ownership a substantial financial stake or indeed its entirety.  Demands like this might then become the norm instead of the exception, requiring the Bar to up its game in terms of cost and service in order to compete for the large volume of work that these firms will have access to.

 

We have become used to dictating our terms of service, taking for granted the ability to charge brief fees, booking fees, refreshers and open-ended hourly rates, as well as relying on solicitors to accept liability for payment.  We could see a market where this new breed of instructing firm has little time for what we regard as traditionally accepted practices and chooses to leverage its increased buying power to challenge terms of this sort.  Many of us already see this approach to some extent from providers of bulk work, such as insurers and public bodies.  It looks set to become more widespread.

 

Similarly, those instructing might simply be looking for a set of chambers to service their needs in a variety of practice areas at a fixed cost and with a uniform level of service.  I suspect they would not be particularly interested in the friction this might cause to our internal management procedures.  There would inevitably be winners and losers in chambers as to who gets the “better” work (and therefore the better fees) and this would be likely to test the cohesion of the chambers structure.

 

It is fair to say that the Bar has been very successful over the past decade in responding to the increasing challenges of modern practice.  With the emerging potential for much more radical change and at a much faster pace, its ability to evolve is likely to be tested yet further.  The strengths of quality, specialisation and value will continue to be key but this will need to be combined with more astute management than ever.

 

As we all know, it is one of the main roles of the barristers’ clerk to reconcile the demands of clients with the expectations of barristers.  It looks as though our jobs could be about to get a whole lot harder.

 

Social Media for Barristers’ Chambers – Friend or Foe ?

This is my recent article in Clerksroom Magazine, a monthly publication for barristers’ clerks distributed to all chambers in England and Wales.  The magazine can be downloaded (free) in its entirety here

When someone mentions social media, the normal reaction is for the eyes to glaze over, with thoughts of Facebook and teenagers exchanging holiday snaps, or one of a thousand “friends” enriching our lives with profound insight into the production of a cup of tea or having some “me time”. You wonder as to its usefulness for anything other than needlessly wasting time. Certainly, it seems of little benefit to the business of running chambers.

Many clerks are becoming active users of LinkedIn, an online platform with similar functionality to Facebook but focused on business networking. There seems however to be little sign of any proper engagement between users, making its main focus simple lists of who knows who, with the only real value being to enable users to see where their competitors are setting their business development sights.

And then there’s Twitter. Only a handful of clerks seem to be using this platform, although many barristers, solicitors and legal journalists have been prolific users for some time. Outside the legal sector, there are many high profile users including MPs, celebrities, journalists and sportspeople (some of whom have captured attention for the wrong reasons).

The benefits of Twitter are easier to see and derive mainly from its simplicity. Users communicate with “tweets” of up to a maximum of 140 characters, just like a text message. Tweets are displayed to a user’s “followers” in their “timeline” (home page). You can choose to follow anyone you like, with no mutual agreement required. This freedom enables you to build your own news feed from those users whose tweets interest you. If you find them of little value then you are free to “unfollow” at any time. Because tweets are so short, they take very little time to read and encourage concise and incisive communication.

Twitter is growing dramatically across the globe as a credible business networking tool, as it enables you to reach out to potential clients in a unique way, both individually and as an organisation. As well as the knowledge that you have a captive audience (your followers have actually chosen to receive your information, which may not be the case with your chambers newsletter mailing list) you also have the opportunity to engage in dialogue with others and give some personality to your online presence, rather than simply churning out faceless marketing blurb.

The credibility of Twitter and its value to chambers is emphasised by the strong presence of organisations such as the Bar Standards Board, the Bar Council, Ministry of Justice and the Judicial Communications Office as well as all of the mainstream legal press.

Against this background, there really seems to be only one way to go with social media.

As ever, it is just a matter of time and there will be those who gain an advantage by moving swiftly.

The Barristers’ Clerk – the Reality behind Billy

I have recently had the great pleasure of recording a podcast with the venerable Charon QC. He opened by asking me to outline, in layman’s terms, the role of the barristers’ clerk.  It was unarguably a fair question and one of particular interest to listeners following the recent highly entertaining BBC series Silk, in which the senior clerk, Billy, played an eye-catching role.

One could be forgiven for thinking that somebody who had been doing the job for over 20 years might have had a decent stab at a concise and coherent answer to this question.  I fear that my response did not come close to meeting this description.

On reflection, this is perhaps not surprising. At its simplest, the role of clerk within any given set of chambers is somewhat amorphous. Moreover, the scope of the role varies between sets of differing practice areas, sizes, structures and cultures. When you factor in yet further variations arising in recent times from an increasingly competitive market and the prospect of dramatically changing landscape in the future, the role of barristers’ clerk is becoming increasingly difficult to define.

Just another management role ?

I do detect a perception that there has always been something mysterious and possibly even menacing about the role of  barristers’ clerk.  Certainly some of this is Billy’s doing (and perhaps also that of his “predecessors”, Albert and Harry of Rumpole of the Bailey).

Let’s get one thing straight. There is nothing particularly difficult or unique about the duties of a clerk. Anyone who runs any kind of small business has to grapple with similar challenges: constantly competing priorities between a wide assortment of duties such as marketing, sales, order processing, customer service, HR, invoicing, billing and credit control.  In such organisations workload tends to be subject to continual fluctuation – litigation being as extreme an example as you’ll find – but it is of course not viable to employ enough people to cover the busiest possible scenario without having many sitting idle when things are quiet. The answer therefore lies in having a “critical mass” of staff but with sufficient skill variety, resilience and flexibility to be able to adapt to widely changing requirements.

The challenging environment

The real challenge for the barristers’ clerk lies not in the nature of the work, but in the unique environment in which he or she operates, being employed by members of chambers, both collectively and individually, to make important decisions on their behalf while taking into account the best interests of their clients.  This means wearing not two but three very different hats, none of which are a perfect fit but all of which are under close, constant and unforgiving scrutiny.  (Ladies’ Day at Ascot springs to mind).  Not surprisingly, rarely is there a “right” way to reconcile these interests or an outcome where all parties are completely satisfied.  There is no manual or guide book to give you the answer. You simply have to accept this situation and move on to the next one.  Here, Billy’s rhino-thick skin evidently came in very handy.

The type of conflict I am referring to can best be depicted by looking at the role from external and internal perspectives.  The external, client-facing aspect means managing the provision of services to clients, so that the required work is carried out by a suitably experienced and motivated barrister, within the required timeframe and for an acceptable price.  Billy seemed to be pretty effective at client-facing and was often seen facing clients across a table in the Devereux public house.

The internal aspect involves providing a service for the members of chambers, by offering administrative and logistical support for their practices and managing their diaries and workloads in a manner which suits their (widely varying) ambitions, characters and lifestyles.  It also encompasses the important responsibility of advising on the progression and development of their careers and facilitating this using relationships, opportunities and market knowledge gained from the client-facing role.  Billy didn’t go to the Devereux just to talk about the weather.

It doesn’t take too much imagination to identify scenarios where the internal and external responsibilities come into conflict.  A client’s ideal price is unlikely to be the same as the barrister’s.  An ideal barrister for a client’s requirements may not be the one sitting idle in chambers desperate for their next brief.

The vital ingredient

How did Billy deal with this ?  Easily, it seemed.  Because Billy had power.  When Billy told someone what was the right fee for a hearing or the right case for their Silk application it was taken as fact, without question (if you leave aside the minor issue of a mutiny plot).  Without access to the history of Shoe Lane Chambers it is difficult to ascertain the source of this power.  I think I detected fear and respect among the members.  Perhaps this was fear of him derailing the careers of those who crossed him combined with respect for his competence and longevity.

In reality, the power base of the barristers’ clerk is indeed of extreme importance, although the source of it may be somewhat removed from Billy’s.  You really do need power, the potential to influence.  Unless you have power to take decisive action you cannot sustain the job with any effectiveness (or indeed sanity) when, as we have explored, you are constantly in the middle of unsolvable conflict.  Menace seemed to work rather well for Billy but alas tyranny does not feature too highly in the modern leadership textbook.   But you do need to find a way for people to recognise and accept your influence in order to avoid a situation of paralysis.  Some of the required power is inherent in the position itself, which brings with it not just recognition but also unrestricted access to all members of chambers and their clients, from which a uniquely potent knowledge base can be amassed.  The rest of it however can only come from earning respect and credibility through competence, trust and integrity.  There is no magic formula for this.  Sorry Billy, but it’s just a TV show.

Significance – past and future

Ultimately, the true significance of the role of barristers’ clerk can be narrowed down to just two broad functions:  absorbing the friction arising from the inherent conflict and applying diverse skills flexibly so as to permit the low-cost operation of chambers.  It just happens that these are the two vital ingredients needed to make the chambers business model viable.

This is not easy work and has been essential in sustaining the success of the Bar for so many years.  I believe that any clerk who has been in the business for the last decade or more can rightly lay claim to having played an important part in the development of a legal system that is the envy of the world  (an ambitious boast, but one that is attested to not just by commentators, but by countless jurisdiction clauses worldwide).

But the last decade is, of course, history.  It’s the next one that counts and this will no doubt present yet tougher challenges.  Luckily for me, I’ll always know where I can find Billy.

 

Alternative Business Structures and the Bar: Big Bang or Damp Squib ?

The build-up to the implementation of the Legal Services Act is gathering pace.  It is a topic that has been discussed, debated and opined upon for years.  Now, less than 6 months away, we are starting to see law firms declaring their intentions to adopt alternative business structures (ABS) as well revealing, in fairly specific terms, the ambitions behind these plans.

In contrast, there have been no announcements of this sort from any barristers’ chambers.  If discussions I have had with colleagues in other sets are anything to go by, then I don’t expect to be reading any eye-catching headlines any time soon.

This should really be no surprise.  The Bar is a referral profession and inevitably there will be some time lag between changes in the structure of the its principal referrers and any resulting impact on the services sought.  In any event, it is by no means a given that external investment in solicitors’ firms will give rise to any change in the services they seek from the Bar.

It should not be assumed that the Bar is burying its head in the sand.  Far from it.  The Bar Council and regional Circuits have been conspicuously active in heightening awareness of the challenges that await.  Many will have read or listened to the words of last year’s Chairman of the Bar, Nicholas Green QC, who very energetically (and most commendably) took centre stage in this process.  Furthermore, there is under way the development of a new and up to date quality control ”kitemark” for the Bar, for chambers to opt into if they wish as a pathway to improving management, efficiency, client service and achieving business excellence.

In considering the impact of the LSA and how it might affect me in my role as a barristers’ clerk, it has become pretty clear to me that the possibilities are limitless.  But of course possibilities are, well, just possibilities.  Will they become reality ? If I was a gambling man (and I am) I would not even consider placing a bet as to where the LSA’s effect on the Bar would end up on an impact continuum spanning from “damp squib” to “big bang”.

The Bar’s strength

In my view the place that the Bar occupies in the legal landscape makes it less susceptible to impact from the LSA than other branches of the legal profession.

As I have said, the Bar is a referral profession.  Its customers (as distinct from “lay
clients”, who in most cases are better described as consumers) are predominantly
solicitors, who effectively subcontract work to the Bar when required, usually in cases requiring either advocacy or specialist legal expertise outside that available to them internally.  The Bar is evidently very successful at providing this service to a high standard and at competitive cost, the latter being made possible by the low cost base inherent in the chambers structure.

The Bar is not just competing in the legal marketplace for business.  It is also competing for people.  On this front it also boasts considerable appeal, in being able to offer a possibly unique combination of intrinsic rewards such as independence, autonomy, variety, challenge and work-life balance.  Not to mention the potential for very high financial rewards.

ABS and the Bar

The fundamental elements for the formation of an ABS seem to me to be investment and return.

The first question I ask about investment is how would external funding be used by a set of chambers ?  The two areas where solicitors seem to be setting their sights are marketing and expansion.  I do not see the Bar following suit.  Marketing to the relatively limited and clearly-defined audience of the Bar is not expensive and certainly does not require a large capital injection.  As for growth, for a set of chambers this simply means acquiring new members, either by lateral hire or by taking on pupils, or mergers between sets.  Again, there is no substantial cost involved.

If we do succeed in finding an answer to the investment question, there are further hurdles to overcome when it comes to generating a return.  Typically, each member of a set of chambers contributes something between 12-18% of his or her fee income to chambers expenses.  You can be sure that any return on investment would have to come out of this figure (both to remain cost competitive and to be commercially acceptable to the members), so investors would need either to find ways of generating additional income or to come up with an administrative structure that dramatically undercuts the existing one (which is already noted for its frugality) in order to have the opportunity to see any worthwhile return.

The chambers structure

The strength of the chambers structure is however also its weakness.  Generally, sets of chambers are very loosely constituted organisations, with little more than camaraderie, goodwill and convenience holding them together.  Perhaps above all it is more the perception that it is “not the done thing” that really prevents barristers from moving between chambers more frequently than they do, although this practice appears to be gradually on the rise.  If this situation were to escalate to the point where it became the norm to move chambers, then this really would test the strength of the organisational glue formed from the mixture of these largely intangible factors.

In this scenario, the threat to the cohesion of sets of chambers could be compounded by the temptations that other forms of business structure may be able to offer barristers, in the form of acceptable combinations of the rewards I have referred to above but perhaps with the added benefit of more financial security, guaranteed work streams and other employee benefits.

An example that springs to my mind is the personal injury specialist who acts predominantly for defendants and whose practice is dominated by a small number of large insurer clients.  It may end up being possible for this practitioner to have a virtually identical practice – doing the same work for the same clients  – under the umbrella of an ABS set up by a group of insurers, perhaps also involving solicitors, loss adjusters, experts etc.  This setup may be able to offer a guaranteed income (avoiding the uncertainty and continual pressure from the bulk buying power of insurers) while still offering virtually the same degree of independence (which is already somewhat limited in this sort of practice).

There may well be flaws in this rather speculative example, but I am in no doubt about my general point that before too long opportunities will arise, that were hitherto imponderable, for barristers to work outside the traditional chambers structure without having to compromise unduly the independence and professional values which brought them to the Bar in the first place. This could turn out to be a very tough test indeed for the cohesion of the chambers model.

What now ?

Although the general thrust of this piece is that the Bar is in the seemingly enviable position from which a “wait and see” strategy can be afforded that is not to say that there isn’t much that can be done now in order to prepare for these as yet undetermined challenges.

I can see particular importance in sets of chambers safeguarding their cohesion by clearly defining and establishing collective objectives, goals and values and ensuring that they are understood, agreed and aligned with those of the individual members.  This is of course fairly basic stuff for any modern business, but it takes on added significance in an organisation where, as we have explored, the binding factors are so tenuous.  A set that is strong in this respect will not only retain its members but will also have the commercial agility that will leave it well equipped to deal with difficult and unexpected choices that may be forced upon it by external factors.

Of course, sets must continue to focus on the Bar’s areas of strength - high quality specialist service at highly competitive cost – and combine this with good communication to the marketplace.  A very strange kind of big bang would have to happen to create a market where these fundamentals are no longer a recipe for success.