To conduct litigation or not to conduct litigation ….

…that is the question.  A rather important question for barristers’ chambers (and not just a smooth and catchy title).

A Bar Standards Board consultation has recently been opened on the new Bar Handbook (which is to replace the current Code of Conduct) and entity regulation.  As you would expect, it involves a detailed and wide-ranging review of all aspects of the Bar and there is much to consider.

The section that particularly caught my eye was the one providing for barristers to be permitted to “conduct litigation” (Part C of the consultation paper at page 29 – PDF).  This comes as no surprise to anyone, having been talked about for some time: Legal Futures reported in May 2010 that a Bar Standards Board survey had found that the majority of barristers wanted this capability.

This could well prove to be a fine illustration of the adage “be careful what you wish for”.  Back in those days (recent developments in the legal services market genuinely make 2010 feel like a different era) I suspect many, like myself, saw this as little more than a convenient step to enable, for example, London sets to help out provincial instructing solicitors by issuing or lodging the occasional pleading or application notice; or possibly firing off the odd letter to the other side.  Saving duplication and cost – what harm could there be in that ?

In the post-LSA era (by which I mean the climate that his existed since, not just because of, the LSA coming into force) the implications are far more wide-ranging.  Sets may be thinking seriously about the possibility of increasing market share and generating additional revenue streams through conducting litigation.  For some this may seem an obvious step in order to progress existing good relationships with key corporate clients, where there is mutual benefit in expanding the currently limited scope of service into a full offering at a very competitive cost.

Of course, it is easy to talk about competitive cost, when this is a benefit that is enabled by the low resource base of the typical chambers setup.  The question arises as to whether the low cost base can be maintained if the required resources to properly conduct litigation are assembled: the resources required to deal with correspondence (often urgently, with little regard for whether or not the relevant barrister is tied up in court) , to take full responsiblity for deadlines, procedural expertise to deal with formal steps in proceedings as well as the knowledge, understanding and personal skills required to deal directly with non-lawyer clients.  At the very least, we are talking about acquiring and/or training additional personnel (which might include solicitors), adopting new processes, additional compliance requirements, new IT infrastructure and probably a significant increase in insurance premiums.  It would also require a change in culture, with barristers being ready and able to step in to “somebody else’s case” as and when circumstances dictate (which they invariably do most unpredictably, as any solicitor knows).

Even if the chambers did possess the capability to adapt in this way, careful thought would need to be given to the extent to which any cost advantage may be eroded, as this is the key to the service being of relevance to the consumer.  Otherwise, why would they choose to take the risk of going anywhere other than their existing, trusted solution in the form of solicitors ?

So yes, this all looks a but complicated, disruptive and the sort of thing your usual conservative barrister is likely to shy away from.  But in the current climate of increased openness to change and (in some quarters) a genuine struggle to remain commercially viable this is not a step that can easily be discounted, particularly with the prospect of the enabling properties of external investment seemingly so readily available.

Of course, many sets will not be considering any such moves, content that they are doing just fine as they are and keen to carry on unaffected.  Ultimately however it will be beyond their control whether they are affected or not – for example, if a major competitor decided to take the step into litigation, suddenly offering clients the attractive proposition of a full range of services and in doing so creating strong, direct relationships with them and thus access to their stream of work.  A set would need to have the ability to act quickly and decisively as a group in order to respond.  It may need to be sufficiently (or at all) capitalised in order to be able to do so.  “It” would need to actually mean something – preferably a cohesive, like-minded group, rather than a bunch of individuals left over after the rest have jumped ship to the more attractive competitor.

It may be that some sets have already proactively considered these possibilities and decided to protect their position by focusing on their strengths of specialisation and cost-effectiveness, ensuring that they remain indispensable to their core clients by demonstrably valuing them more than ever, through strong relationships and excellent service thus providing a compelling proposition that renders other offerings irrelevant.  But this is unlikely to be achieved by simply carrying on as normal.  Financially pressured and increasingly sophisticated corporate clients will be looking closely at other options, so the challenge of remaining the most attractive one will surely be too great to meet by standing still.

It seems clear that, although seemingly benign at first glance, on closer examination that this part of the proposed new Bar Handbook is capable of causing wide-ranging and perhaps unintended consequences.  I have a feeling that the possibilities I have outlined may be regarded by some as a little radical.  In 2010 this may have been the case.  In 2012, the radical view is the one which expects the Bar to remain immune from such external factors and carry on unaffected, just as it always has done.

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