Are you shore …?

Yet more news emerges of large commercial law firms setting up “near-shoring” or flexible resourcing operations. The idea, presumably, is to be able to carry out lower value work at a lower cost, freeing up the more costly resources to do higher value work. By “more costly resources”, we’re probably talking associates (and possibly more junior partners).

It follows that these associates have over the years being doing lower value work than perhaps they ought to have done. More significantly, if these alternative models are successful in achieving their objectives then the result will be less work for them.

This tempts the question how will this work be replaced ? I’m sure the aim will be to win more higher value work, but as more and more firms adopt this model it will become the norm, not a differentiator. They can’t all increase their share of a finite market.

How then will firms adapt to this self-inflicted work redistribution conundrum ? Will they reduce hourly billing targets – and corresponding revenue – to more civilised levels ? Will we see pay cuts ? Or even redundancies ?

It seems unlikely that high value work will cascade down from partner level, unless the plan is to free partners to do more “rainmaking”. Of course, more and more firms are also increasing their specialist business development teams, doing the rainmaking at a much lower cost than partners.

I can see the law firm of the future being less top-heavy, with partners not being judged on rainmaking or hours billed, but on the ability to effectively and profitably select, deploy, manage and nurture teams of less experienced lawyers, while progressively building the firm for the future. I’d suggest this is a more healthy strategy for the individual, the firm and the effectiveness of the market.

As firms follow the crowd and join the queue to set up their “near-shoring” and flexible resourcing operations, you have to wonder whether they are really looking any further ahead than the firm in front of them ?

“New normal” or business as usual for the Bar ?

While the Bar is widely perceived as being a “traditional” profession, I am of the view that many overlook the fact that it has long been operating in a highly-demanding marketplace and is thus well-equipped to cope with the current “new normal” market conditions which the wider legal services market seems to be only just waking up to.

Here is the link to my article on the subject for LexisNexis Future of Law blog.

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.


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 …

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.