Public Access to the Bar – main event or sideshow ?

Recent headlines seem to suggest that the Bar is gearing up to “by-pass” solicitors and embark upon an all out war with them for business in these increasingly competitive times. This is on the back of figures published in a recent joint Bar Council and Bar Standards Board report, projecting that the number of barristers qualified to conduct Public Access work is set to rise from the current 20% to 50% by the end of 2015.

Public Access is therefore increasingly being talked about as a major opportunity for the Bar and threat to solicitors. But how informed is this debate ?  Is there a genuine market shift in play or is this merely paranoia-induced hype ?

What is “Public Access” ?

Put simply, Public Access means accepting instructions from a lay client, as opposed to a professional one. “Professional Client” is defined quite broadly in the Bar Handbook, but in reality it means solicitor in the vast majority of cases.  What being “instructed” by a solicitor actually means is surprisingly unclear in the Code of Conduct, but I think it is generally taken to mean receiving instructions, papers and/or information on the authority of a solicitor, whether or not the preparation is actually physically done by a paralegal, legal secretary or other person within the organisation instructing.

Relevance to the market

I think it is important to point out here what types of work barristers can already do without being authorised for Public Access.  Here, I think the waters have been muddied by the common reference to “direct access”, which has no prescribed definition.

First, barristers have always been able to accept instructions from large corporations or indeed any organisations that have their own in-house legal function (assuming it contains a qualified lawyer).  Some of the largest corporations (notably banks, insurers and utilities) and public bodies, with a regular requirement for litigation services have instructed the Bar directly (ie. without the involvement of a private practice solicitor) in large volumes for many years. And I mean many years – certainly dating back to the 1990s if not before. Public Access is therefore of no relevance to this significant segment of the market.

Secondly, since the International Practice Rules were introduced around 15 years ago barristers have been able to accept instructions directly from overseas lay clients (although this excludes litigation after the point of issue of proceedings, when a solicitor is required).

Thirdly, again for about 15 years, barristers have been able to accept instructions directly from members of various recognised professions, such as accountants, tax consultants, surveyors and architects.

All in all, this renders Public Access completely irrelevant to a significant part of the legal services market.  This does of course still leave the not insubstantial domestic consumer and SME markets, but it is important to set the context for any debate about threats or opportunities presented by Public Access by first recognising the restricted reach of its potential impact.

Authorisation for Public Access work

The position, particularly with regard to the perceived threat to solicitors, is put further into perspective when you consider what qualifying for Public Access actually entails.

Basically, it involves paying a fee in the region of £400 in return for a 1.5 day course.  For many barristers, this is a relatively small investment of time and money particularly when you consider that it also takes care of a full year’s worth of CPD points.  I’m not sure it requires a decision of any great magnitude to embark upon this and I believe that many barristers will not do so because of any great appetite for Public Access work, but rather they are happy to leave the door open for opportunities of special interest or those that may come at a convenient time, when business is otherwise quiet.  To use the ubiquitous taxi metaphor, it’s like turning the light on but leaving the taxi in the driveway.  (Having gone down this route, I should add that the controversial “Cab Rank Rule” does not apply to Public Access work).

Where I’d suggest the debate has got a little hysterical, is the widely reported perception that the increase in Public Access authorisations represents a wholesale strategic re-positioning of barristers’ business plans with a view to a major onslaught on solicitors’ territory. More likely, it is a sensible investment of relatively small amounts of time & money to put oneself in the frame, without obligation, for possible opportunities while meeting mandatory CPD requirements. Along the way, one might also learn a bit more about client engagement and gain a better understanding of some of the work of solicitors. In my view, “taking over the world” does not feature highly in the list of reasons to go down this route.

Appetite and capability 

There does however seem to be an increasing appetite at the Bar for Public Access work and the profile of this route to instructing a barrister has certainly been raised in recent times, not least through the proliferation of web-based marketing portals for barristers.

I’d suggest the vast amount of the buying market does not particularly want to buy “Public Access”. More likely, they have a legal problem, to which they need an effective solution at the right price. That best solution can of course in many cases lie in Public Access, where it is primarily advocacy that is required or specialist discrete advice is needed in scenarios where the legal problem can be clearly identified and “packaged”. There is also the overlap between the work that both barristers and solicitors can do where they tend to be equally-suited (eg. advice on tax or company law). Here, competition is surely a good thing.

Despite all this, I cannot help thinking that it all boils back done to the basic and obvious point that the Bar is all about advocacy. Advocacy is a specialist and demanding discipline, both in terms of training & skills required to do it well and also practice management revolving around tricky diary management of multiple practitioners often in scenarios where courts are increasingly less inclined to flex to accommodate advocates’ availability. Any successful advocate will tell you that preparation is paramount and that time allocated for this is pretty much “sacred” in the diary to the exclusion of almost everything else. Many solicitors will tell you it is the existence of practical constraints of this kind that is the reason why they seek services from the Bar, in addition to the small matter of simply not wanting to do advocacy work themselves.

While inevitably a generalisation I make no apology for stating my view that barristers are simply better advocates than solicitors. An obvious and uncontroversial conclusion, I would have thought; more so perhaps if I remove the labels and say that those with the desire, aptitude and training for specialist advocacy are better at it than those who have none of those things. You could turn this into a debate about “fusion” of the profession, but I would simply point to the US: there are those who are specialist trial advocates and those who are not.  It’s just that the divide is less visible and the labels are less distinct.

Challenges for the Bar

So yes, Public Access is a good thing for the consumer seeking advocacy services in cases which they are either competent to prepare themselves or need little preparation. I make that qualification, because often a client will not know how to prepare or conduct a case to trial or even know what facts & documents are relevant or, significantly, what they don’t know but should explore. Here we are in the territory of solicitors, for whom building, preparing and conducting a case is the day job. While this work is undoubtedly not beyond the capabilities of many barristers, it is not naturally an easy fit.  It dilutes the advocacy specialisation and their self-employed status makes this sort of activity impractical to service on a regular basis.  And no, generally speaking they are not as good at it as solicitors.  (Of course, the impending ABS regime for barristers may create opportunities here, but as with any opportunity it comes with risks.  A subject for another post …)

Other potential barriers to success in Public Access often cited are the inability to handle client funds or to deal effectively with lay clients.  The former issue is now no longer a hurdle at all thanks to BarCo’s escrow account facility.  As for the latter, I have no time whatsoever for this argument.  Solicitors who hide behind this for reassurance – who tend to be the same ones who hide behind anonymous comments on legal media websites – are frankly deluded.  The Bar has upped its game.  I will not explore here the merits of these points; they are put forward as opinions of this impartial observer who has plenty of experience working both sides of the proverbial fence.

The biggest hurdle

I am leaving until last what I feel is the area which will most challenge the growth of Public Access.  Marketing.  I think it is easy to overlook the length and precariousness of the journey of an instruction, from its embryo as a client’s realisation that they may have a legal problem, through to a brief in a barrister’s in-tray (or more likely, Inbox).

In this respect, barristers have the benefit of what is effectively an enormous marketing department, in the form of the 10,000 firms, with a presence every high street in every town, in the cities, spread across regional chains and of course online.  Collectively, they cover every demographic, practice area, consumer type and industry requirement.  Each firm expends to varying degrees time, effort and money on winning business, through a variety of promotional activities as well as the increasingly painstaking effort required to maintain those precious, hard-earned, sustainable long-term client relationships which tend to form the main source of most firms’ income.  Collectively, this creates something of a marketing Colossus that benefits the Bar hugely.  In comparison – and despite commendably increasing efforts – marketing impact and reach of the Bar is minuscule.  It is hard to imagine it will ever approach the scale of that of solicitors and much of the Bar will acknowledge that it will be reliant upon solicitors for the bulk of its business for the foreseeable future.

The marketing of the Bar in its own right is however dramatically improving, with chambers quite rightly aiming to build closer, more direct relationships with its non-professional client base.  Smart sets will be building these relationships to the extent that they are the first port of call for new work enquiries, giving them the option to act directly and/or recommend and bring in trusted solicitors’ firms when appropriate.  In this respect, the balance of power is shifting, which in my view can only be a good thing, as the increasing range of options for selecting a legal team makes the client the winner.

A symbiotic relationship

Of course, law firms will continue to win business from clients who have advocacy and/or specialist needs that they can’t themselves meet, for the reasons explored above. So solicitors will continue to need the Bar, as the Bar will continue to need solicitors. This may yet be challenged by the evolution of new business structures and so it should if this makes for more effective or better value service for clients.

In the meantime, call me old-fashioned but this all sounds to me rather like a recipe for a very well-functioning market.

So, let’s play nicely everyone.

Back to the Future (13th Century Edition)

I read with great interest the recent report entitled The New World of Legal Work, by Jordan Furlong, commissioned by legal resourcing business Lawyers on Demand. Jordan is a highly respected international legal market commentator and his material always makes engaging and thought-provoking reading.  I regard Jordan’s work as realistic and pragmatic rather than “futurology” for the sake of it, of which there is no shortage around social media channels.  I highly recommend a read of the report if you haven’t already and also Jordan’s blog.

The rise of agility

One of the striking conclusions of the report is the anticipated rise of what is described as the “agile workforce”.  This is essentially a shift from both organisations and individuals toward more flexible working models, enabling individuals to dictate how, when and from where they market and deliver their services while organisations have access to a greater degree of flexible resource, enabling the reduction of fixed overheads without reducing capability.

From a legal marketplace perspective this makes eminent sense.  The combination of a highly competitive market and increasingly savvy pool of buyers continues to build the pressure on the dysfunctional partnership structure and the moribund hourly billing model on which it relies.  

Does this all sound familiar ?

What struck me in particular was the similarity of the “agile” model of the future to the characteristics of the barristers’ chambers, a model which was conceived in the 13th century.  To this day, the chambers model successfully provides a zero-overhead, low-cost, flexible and scalable service to law firms and end clients.  It also provides a flexible work option for independently minded individuals to (using Jordan’s phrase) forge their own paths in any direction they like.  It ticks all of the “agile” boxes.

An obvious example of the success of the chambers model is advocacy.  Many less than auspicious attempts by law firms to build advocacy departments have highlighted the challenges.  How do you achieve the right level of resource to cope with unpredictable  and fluctuating volumes of work, requiring a diverse range of specialist skills without running the risk of expensive under utilization ?  Additionally, a specialist discipline like advocacy requires constant practice in order to be executed efficiently. Those who practice advocacy only occasionally will tell you how disproportionately time-consuming it is to prepare for even the most straightforward court hearing. 

The agile model is, I suggest, already a proven one. The question now is how applicable it is to other disciplines within legal practice.  Jordan suggests several categories of possibility including solo niche specialist (of which the Bar is an example in my view), high-calibre project lawyer, flex time contract lawyer with emerging specialities and legal procedural wizard.

Challenges

There are several challenges to overcome in order for this approach to work successfully. The first is managing availability.  The whole point of the arrangement from a buyer perspective is flexibility.  An individual lawyer has only so many hours in the day, so inevitably will not have sufficient capacity to meet the demands of many clients.  A buyer will want seamless access to a reliable resource of sufficient capacity, without the need to make numerous enquiries to see who is available every time a requirement arises.

From the provider perspective, every opportunity turned away due to overcapacity creates the risk of the buyer going elsewhere and not coming back.  The answer to this commercial vulnerability would lie in practitioners forming groups, enabling them to cope with capacity issues without letting opportunities “escape” elsewhere. But inevitably there will be opportunities which escape an individual but remain within the group.  To whom does the next opportunity from that client go and why ? How formal or informal does the group structure need to be ?  These questions point to a strong need for an expert, trusted manager and gatekeeper for the group.

This leads to the next challenge, which is perception.  A buyer of legal services from a group will want to be assured uniformity of service standards, expertise and approach.   Failure to achieve this is a regularly reported shortcoming of existing providers of all forms. Achieving this in a group relies upon clear understanding and alignment within the group. These things don’t happen by themselves, particularly in a collection of independent-minded practitioners.  Skillful leadership, management and investment of time (and money) is needed to articulate the required messages both internally and externally and to ensure they are continually reinforced and translated into practice in a manner that meets the image projected.

This is, of course, essentially what is known as branding.  In my view its significance has been hugely underestimated in the legal sector for many years, which is why very few legal organisations seem to get it right (even within the current predominantly fixed structures: agile structures promise to be even more challenging).

To the 21st century

In my view, the agile model outlined in Jordan’s report represents an accurate and realistic reflection of where a large part of the market needs to go in order to remain effective and commercially viable through increasingly challenging conditions.  We are already seeing it gain momentum through legal resourcing businesses (such as the commissioner of the report – others are available …).  But with a shift in this direction comes a heavier reliance by lawyers on having people around them with expertise in non-legal disciplines.

In my view, the scarcity value of leadership and management prowess will soon be recognized as exceeding that of pure legal expertise.  This might prove to be a difficult view for traditional lawyers to accept, but to me it marks a necessary step forward for the legal industry in order to retain its strong foothold in the economic landscape of the 21st century.  Oh how things have moved on since the 13th …

Cab Rank – whose rule is it anyway ?

The recent LSB-commissioned report on the Bar’s “Cab Rank Rule” seems to have sparked plenty of debate, including a seemingly hysterical reaction from the Chair of the Criminal Bar Association and, mercifully, some measured and informed responses from respected commentators Lucy Reed of St John’s Chambers and Professor Richard Moorhead of UCL.  The report effectively concludes that the cab rank rule is no longer effective or relevant in the modern legal marketplace.

Having worked in chambers for many years, I am not entirely surprised that members of the Bar take seriously any criticism of a principle that goes to the very heart of their core professional values: the need to ensure fair representation and access to justice for all, to support the principle of the rule of law and to protect and promote the public interest.

But let’s look at the context. The report was commissioned by the Legal Services Board, in line with their regulatory objectives.  These objectives can be found here but you needn’t bother clicking on the link, as they can also be found in my previous paragraph.  In other words, the LSB and the Bar seem to be completely aligned in their objectives.

You could ask about the reason behind the report and its timing. The LSB provides us the answers on their website under the helpful heading “Why this ? Why Now ?”  One of the stated reasons is to explore whether :

“… the cab rank rule could potentially both undermine its own aim to improve access to justice (by reducing opportunities for specialisation and so the provision of niche services) and also damage other regulatory objectives, such as to promote competition.”

While this is a clear indication that protection of the Bar’s competitive position is a consideration for the LSB, this reason seems to me to be fundamentally flawed. The cab rank rule explicitly only applies to a barrister accepting work “in any field in which he professes to practise” (para 602 of the Code of Conduct).  Barristers are clearly free to profess to practice in the area(s) of specialisation of their choice, so this particular concern is in my view misconceived.

The LSB’s reasoning gathers significantly more strength in its assessment of the effect of the exclusions to the cab rank rule (set out in paragraphs 603-607 of the Code of Conduct) as:

“perhaps recognising that its absolute status is less relevant in 2013″

and tellingly:

“The fact that so much legal aid work, where access to justice may be thought paramount, is exempt …”

You can now add to this exemption any work where instructing solicitors do not agree to the standard contractual terms recently prescribed by the Bar Council.  If the Law Society’s reaction is any guide, then this means the cab rank rule will be applicable to an ever decreasing amount of cases, for reasons of the Bar Council’s own making.

Moving on from theory to practice, in basic terms the cab rank rule exists to prevent a scenario such as one where a barrister refuses to accept a case on the grounds that he disagrees with the principles or beliefs of the potential client, whether personally or in the context of their case, thus denying them fair representation.  I can only speculate as to how many barristers, when faced with the prospect of a hopeless case, for a client they don’t like, for a solicitor offering no prospect of repeat business, for a small fee, in a distant court, when they are behind on their paperwork and have other, more attractive offers on the (clerk’s) table decide they are compelled to accept the brief purely because of the cab rank rule. I would suggest that this scenario is as common as, say, a taxi turning down a fare.  In any event, no harm would be done as another taxi, or barrister, would be waiting in line.

Looking from a different angle, let’s consider the rigour with which the cab rank rule is observed. The report rightly highlights the lack of any relevant data on this.  I don’t believe any is needed, as I am convinced that it has never, ever been breached.  This may sound surprising, but less so if you look in detail at the rule itself, particulary the broad and hugely subjective exceptions outlined in paragraphs 603-606 of the Code of Conduct.  It’s hard to avoid comparison with the well-know quote from the Life of Brian : “what have the Romans ever done for us ?”

The discretion afforded to any barrister in deciding whether to accept an instruction is so wide as to render the practical application of rule meaningless.  How can you possibly define a breach, much less prove one ? Issues such as availability, expertise and reasonable fees are very much in the eye of the beholder.

I agree entirely with the report’s summary :

“While it can be lauded as a professional principle enshrining virtuous values, as a rule it is redundant.”

It now lies with the LSB to consider the report in the context of its statutory objectives and taking on board the views of stakeholders.  Its ambit quite rightly encompasses the entire legal services market, not just the Bar.   It has invited responses from representative bodies, which I hope they will receive from the Law Society and CILEx as well as the Bar Council and specialist bar associations.

Whatever the outcome, no single branch of the profession has any claim to a monopoly on righteousness.

Taxi for the billable hour …

Much has been written recently (and not so recently) about the shortcomings of the law firm partnership model and in particular the hourly billing approach. I don’t intend to repeat too much of it here and indeed it would be a struggle to add anything of value to Law firm partnership – the Grand Delusion, a most informed and authoritative piece on the subject from Stephen Mayson.

It seems to be broadly accepted in the modern legal marketplace that the hourly billing model is under pressure from clients, commentators and new (and some old) legal practices. The general conclusion is that it drives the wrong behaviours within a firm by defining success in terms of hours billed in preference to value provided to clients. As Lord Neuberger MR (as he then was) summarised in his speech to the Association of Costs Lawyers’ Annual Conference 2012, it confuses cost with value.

But the real damage is done not necessarily by hourly billing in itself, but by the way in which it is too often applied: a misguided aim at the infamous “billing targets”, driven by the need to compensate for the inefficiency of the underlying financial model of the business. With this comes a failure to (or even attempt to) recognise the difference between the hour as a basic raw material and the billable hour as time spent productively in producing an output of value to the client.

For many years I have seen barristers’ fees charged on a time-spent basis. However, the difference in the chambers environment is that no-one is incentivised to spend or charge any more time on a case than is necessary. Quite the contrary, in fact. First, as sole practitioners, barristers tend to have a busy and varied workload and they simply need to get each job done as quickly as possible in order to be able to deal with the next, or risk missing an opportunity. (Of course, doing so without compromising quality is paramount and this balancing act is one of the key challenges facing the busy practitioner).

Secondly, billing is managed by clerks, who are in a unique position of knowledge and understanding about the levels of fees charged throughout the Bar as well as how much a particular piece of work ought to be worth, bearing in mind all the relevant factors. A clerk’s job is to ensure that however much time is spent, a barrister charges a fee which is both fair and proportionate. This kind of scrutiny ensures that even though time-based billing may underpin charging methods, the overriding incentive lies in offering value and thereby staying competitive.

I am not aware of any chambers or indeed any barristers who have hourly billing targets. I suspect this would be counterproductive, as those adopting this approach would stand out from the crowd as expensive and be rejected by the market, resulting in the rapid drying up of instructions. In fact, in most cases these days barristers have to work to fixed or capped fees based on what is acceptable to the market. It is important to add here that in the vast majority of cases “the market” to which I refer is of course made up of solicitors. The irony hardly needs mentioning.

The end result of the chambers approach is the evolution of an effective value-based billing process, even though the means of achieving it may not appear on the face of it to be terribly scientific. Most importantly, it results in proportionality and fairness to the client. It answers Lord Neuberger’s concern by keeping input cost out of the equation. It results in true value.

Of course, the market seems in any event to be moving overwhelmingly in favour of a fixed fee approach.  Indeed, a recent Legal Week Client Satisfaction Report showed that almost 70% of a large sample of corporate clients favoured fixed fees.  In this context it is no exaggeration to say that for a legal practice to be able to survive in (at best) the medium term it will need to be able to adapt rapidly to a fixed fee model.

As I have illustrated above, the Bar is very close to achieving this in its current approach, if not quite already there.  Not bad for a “traditional” profession.  I suspect more fundamental change will be needed by many law firm partnerships.  Any who think they can solve the problem simply by reverse engineering hourly rates will be exposed not only by the Bar, but also by more efficiently structured new market entrants.

The challenge couldn’t be clearer.

Psilkology

Like many who work in the legal business, I very much welcomed last week’s return of the BBC TV series Silk.

Unfortunately for me I wasn’t able to watch it “live” last Tuesday, as I was travelling, but I was able to observe the commentary on Twitter.  As I did so, I found myself somewhat disappointed to read of some of the apparently glaring failings of this new production.  All manner of procedural details and even one or two fundamentals were apparently amiss.  I could hardly bear to watch as, one by one, the legal tweets chipped away at the high esteem in which I held Silk.

I could barely bring myself, a few days later, to actually watch the episode on I-Player.  But I am glad I did.  Yes, of course there were plenty of factual inaccuracies and inconsistencies.  Plenty of drama and enjoyment too, as you would expect.  But what really did grab me was one particular scene which may have appeared innocuous but in fact was an excellent depiction of one of the key roles of the barristers’ clerk and one which I suspect may have been lost on anyone who has not held this position.  Certainly it didn’t seem to be picked up by anyone tweeting on the #silk hashtag.

It was a short scene but, credit where it is due, to my mind it merits attention as a brilliant illustration of the role of psychologist that comes as part of the unofficial job description for any clerk.  Displaying an instinctive sensitivity to Reader’s post-silk rejection disappointment, Billy announces “your caseload just doubled” while handing him several briefs returned from Martha Costello QC.  But before Reader had time to stop, think and feel slightly patronised by what was effectively a display of pity, Billy passed over another brief, this time not a return but a direct instruction, to the words “and here’s one of your own, sir”.  A classic distraction tactic, well known to any parent with young children, as they watch them toddle off delighted with a tennis ball, forgetting that it could have been the iPad …

To my mind, this was a masterful – and typical – display of ego management, the type of which forms an essential part of getting the best out of the sort of independent, driven but inherently insecure characters that generally make up the Bar.  In order to maintain an effective barrister-clerk relationship, this sort of sensitivity is needed constantly to maintain the precarious balance between demonstrating to the barrister how much they rely on the clerk, while not permitting this to cloud their belief that it is principally their own brilliance that drives their success.  In my view, this belief plays a large part in giving the Bar with its unique potency, so it is important that it is guarded with such skill when it could so easily be dismissed as pointless self-indulgence.

It is great to observe this sort of nuance being depicted – whether intentionally or not – to the far-reaching audience of Silk.  I am sure there will be plenty more to learn throughout the series.  I will be watching you, Billy …