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.

Trust and Barristers’ Fees

I wonder why there often seems to be mistrust between solicitors and barristers’ clerks when negotiating fees.   It is perhaps driven by a perception that barristers’ clerks are invariably seeking the highest possible fee in the relentless pursuit of maximising their “percentage”.

This is a misapprehension.  In many sets (certainly the more commercially-savvy ones) the clerks’ focus is on developing sustainable relationships with solicitors and clients, for which a reasonable and transparent approach to fees is a prerequisite. 

Many solicitors might be surprised to know how much time and effort clerks put in to negotiating with barristers internally, trying to persuade them to accept client-driven fees rather than invoking the divine right to {hourly rate} X {as many hours as they feel like spending}.

Trust me.  I’m a barristers’ clerk.