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.