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.

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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 …

Riverview Law: Reinventing the wheel ?

This is a copy of my article for The Lawyer (21st Feb 2012) :-

Yet another new entrant to the legal services market emerges.  Again, a new and unique approach is announced, this time to bold claims of a “market disrupting” service delivery model.  Riverview Law is an ambitious new market entrant comprising a mix of solicitors and barristers backed by highly successful and established legal and business service providers.  It is immediately clear from its undoubtedly impressive website that it is promoting a strong brand and has gone to a lot of trouble to understand the needs of its target market.

Re-inventing the wheel ?

The Riverview business model is claimed to have been designed “starting from a blank piece of paper” and “from the customer up, not the law firm partner down”.   I don’t doubt for a moment that this approach has been faithfully and rigorously applied.  It is interesting then that the product of this design bears many similarities in operational terms to the setup of a barristers’ chambers, which I suspect has evolved rather differently.

Both models boast low overheads and flexible legal and support teams.  Enquiries from clients come in to a central customer services unit or clerks’ room.  In Riverview’s case, they are dealt with by “sales advisors” who I suspect perform a role similar to clerks, but with added legal knowledge so as to be able to understand the legal requirements of lay clients, before recommending a solution from their team of solicitors and barristers and identifying the appropriate costing option.

Bar Direct Access

One advantage is already clear.  The Bar has for some time talked a good game about direct access, however it is inherently unable to offer an unqualified service because of the restrictions on the type of work barristers can undertake.  This means that time and effort is required at the outset for investigation as to suitability of each case.  It also involves providing something of a selective service to the client who runs the risk of being told at any time that the barrister can no longer help and that a solicitor is needed.

This does not seem an attractive proposition for a client when compared to the Riverview model which not only enables the completely objective selection at the outset, but also has the flexibility to allow seamless and cost-free transition from one to another as required.  This offers the cost and expertise benefits of direct access, but without the risk.  Barristers are to operate on what seems to be the highest profile deployment yet of the “procureco” model, involving them in the business but at arm’s length thus enabling them to remain in independent practice at their existing chambers while avoiding additional potential for conflict.

Restricted choice ?

A possibly less advantageous aspect is the relatively limited choice of barristers.  I say ‘relatively’ because it has to be compared to the competition which takes the form of the wide choice available at the independent Bar, where it is increasingly common for practitioners to work to fixed budgets often under a not-dissimilar panel arrangement.  Furthermore, Riverview Chambers comprises 43 barristers of which around a third seem to be family law practitioners and only a very small proportion specialise in commercial work.  This constitution is something of an eye-opener in an organisation whose clear focus is on providing services to businesses.

This may be prove to be a shrewd way to barristers (and their chambers) to gain exposure a in this much-coveted area of the marketplace, in return for which Riverview gain their commitment to work at low fixed fees.  There is no reason to suggest that they will not be able do so effectively, but it remains to be seen whether this finds favour with a commercial market populated with clients of ever-increasing sophistication.

The key differentiator ?

Perhaps the feature of Riverview that it sees as its key brand differentiator is its ability to offer bespoke, fixed-price solutions including a fixed monthly spend option.  Working for fixed fees is nothing new to solicitors or barristers, but with this comes the freedom to decline to act on this basis in cases where the amount of work involved is unpredictable.  Riverview is unlikely to have the luxury of this choice.  Having put fixed fees unequivocally at the forefront of its brand, its differentiator will be lost if this approach is not applied consistently.  This means regularly running the risk of operating unprofitably unless this risk can be robustly mitigated.  If it can achieve this then it will certainly give it an edge in the market and it seems confident that it can do so with the application of sophisticated technology.

So is Riverview going to cause the claimed market disruption ? Nobody can doubt that it is an interesting arrival on the legal services scene.  Although it offers no individual facet that is completely ground-breaking, it has raised the profile of the shortcomings customers encounter with existing providers and represents a commendable attempt to harness and apply consistently the best of current good practice.

If it delivers as it promises it will surely prompt many in the business to up their game, bringing about further increases in the quality, value and accessibility of legal services. This can only be good news for the consumer and the health of the legal industry.

The Bar – Time for a Culture Shock ?

This is a copy of my recent article for the Pupillage Blog, which I can highly recommend as an insightful, engaging and comprehensive online resource for aspiring barristers.

I have for some time been considering writing about my thoughts on practice at the Bar, from my perspective as a barristers’ clerk, as a guide for new or aspiring barristers.  This process has, perhaps surprisingly, been hampered by considerable hesitation.  I have found myself thinking along the lines of: “Me, a non-legally-qualified clerk ? Telling the guv’nors what to do ?  Qualified barristers, the cream of the legal profession…?” and so on, wondering whether it is my place at all to give advice to such highly intelligent individuals.

This is all, of course, complete and utter nonsense, yet I am far from alone among my peers in such musings.  It must say something significant about the culture at the Bar that such doubts are troubling those who have for years occupied the “coal face” of service delivery in the profession and whose role involves close and constant contact with all sections of the marketplace.

The thrust of this introduction therefore is that in order to think about how best to progress in the future, following the approaches and attitudes of the past really is not the best start.  Perhaps it is time to realise that the culture at the Bar is restricting its progress at a time when it badly needs unfettered ability to adapt to the increasing demands of the market.  As ever, prevention is easier than cure, which is why understanding these issues at the start of a career can prove invaluable in unlocking the potential for a successful practice.

The good news is that none of this requires any kind of revolution or rebellion against the established order.  It doesn’t need anyone to stand up and shout “no !” to the establishment at a time of their career when they are, quite justifiably, keen to conform to the accepted order of the profession to which they have worked so hard to gain entry.

It is simply a question of adopting a mindset that is free from the assumptions of the past, thus liberating them to go about the business of providing a service based on what the market wants to receive, as opposed to what the provider wants to give. In reality the two are not that far apart, but the gap between them is becoming more and more exposed in an increasingly customer-led environment.

The starting point for redressing this comes with the recognition that the Bar is fundamentally a service industry and while reliant upon high levels of professional expertise, has much in common with many other lines of business that we all deal with in everyday life.

Why should it be that so many barristers find it hard to see things from a client’s perspective by drawing a parallel with their own experiences of, say, having their car serviced ?  Most likely, they would not be able or inclined to service their own car, so would need to entrust the job to someone with expertise that they don’t have themselves. I suspect they would want to know when the job would be completed and that it would be finished on time, as promised.  They would want to be confident that the work was being carried out by someone suitably qualified.  They would want to know how much it was going to cost and the basis on which the price was calculated.  You can be sure they would demand a good explanation for running late or going over-budget.  Ultimately, they would expect their car to be running smoothly and to have any follow up queries dealt with promptly and without charge.

This is a simplistic comparison, I know.  Yet for many years I have seen evidence in practice of an instinctive expectation by barristers that clients will accept, without challenge, situations that would be completely unacceptable to them if roles were reversed.  To make matters worse, they know full well that the vast majority of these clients are themselves lawyers, which makes these expectations even more unrealistic and, when you think about it, completely irrational.

But these are not the type of people who you would generally describe as irrational, yet here they are clearly displaying an irrational mindset.  Difficult to change, perhaps, when it is a deeply-rooted legacy of generations of flawed culture.  But not at all difficult to avoid in the first place for those to whom it is visible and recognisable as a dangerous obstacle.

The Legal Services Act – what now for Chambers ?

My article in the Sept 2011 edition of Clerksroom Magazine, a free monthly publication for clerks and managers in barristers’ chambers:

You’d have had to be on some pretty faraway planet not to have heard of the Legal Services Act 2007 (“LSA”) and its anticipated impact on the legal marketplace.  “Tesco Law”, “deregulation”, “Big Bang” are just some of the (rather misleading) descriptions you will have been unable to avoid in various media.

Alongside this, we have seen news of a variety of interesting developments in the legal services market.  The prime example is Quality Solicitors – a national network of solicitors’ firms, effectively operating as franchises under the QS brand.  It has been heavily advertised (including a TV advert featuring Amanda Holden) and is in the process of setting up “Legal Access Points” at counters in around 1000 branches of WH Smith, where they offer free first consultations.  Its stated focus is centred on providing easy access to lawyers for the public and high standards of customer service.
 
We are also seeing signs of expansion and consolidation in the marketplace.  A good example is Parabis, a group that has rapidly evolved into a £100 million business through the acquisition of solicitors firms and non-legal insurance related enterprises.  Parabis have stated their intention to convert to an alternative business structure, as have several other high profile firms which have cited external investment for growth as the driving force.  And of course there is the prospect of Co-Op and other retailers (not Tesco, so far) entering the market.
 
In the context of the history of the legal marketplace these are undoubtedly extreme innovations, however it is important to point out that they are not in any way dependent on the LSA (the relevant provisions of which are yet to take effect).  They have developed within the existing regulatory framework.  Businesses are pushing the boundaries of existing ways of providing legal services, even before the doors are open to alternative structures and non-lawyer ownership.
 
So, increased customer focus, market consolidation and external ownership: what has all this got to do with running a barristers’ chambers ?  After all, barristers just want to be barristers, not entrepreneurs.  They want to get on with the business of being independent specialist legal practitioners.  More barristers aspire to being Sumption QC than Lord Sugar and I doubt we will be seeing many appearing on Dragon’s Den.  For that reason (if you’ll forgive me …) it is hard to see barristers chambers taking such large leaps to come up with new innovative business structures.  And why should they ? The tried and tested virtues of quality, specialisation and value have proven to be effective even by the most modern commercial standards.
 
But what the Bar will have less control over is the huge potential for change in the dynamic of the market in which we are operating.
 
Consider then the conversations I’m sure many of us have had with solicitors about that “demanding client”, where they apologetically ask for that little bit extra – more work, within a shorter timeframe and for less money – on the grounds that the client is “a big corporate” throwing its weight about.  (You may, like me, have found these conversations more frequent of late).  Now consider what business might be like when this type of client literally becomes the instructing firm, by way of ownership a substantial financial stake or indeed its entirety.  Demands like this might then become the norm instead of the exception, requiring the Bar to up its game in terms of cost and service in order to compete for the large volume of work that these firms will have access to.
 
We have become used to dictating our terms of service, taking for granted the ability to charge brief fees, booking fees, refreshers and open-ended hourly rates, as well as relying on solicitors to accept liability for payment.  We could see a market where this new breed of instructing firm has little time for what we regard as traditionally accepted practices and chooses to leverage its increased buying power to challenge terms of this sort.  Many of us already see this approach to some extent from providers of bulk work, such as insurers and public bodies.  It looks set to become more widespread.
 
Similarly, those instructing might simply be looking for a set of chambers to service their needs in a variety of practice areas at a fixed cost and with a uniform level of service.  I suspect they would not be particularly interested in the friction this might cause to our internal management procedures.  There would inevitably be winners and losers in chambers as to who gets the “better” work (and therefore the better fees) and this would be likely to test the cohesion of the chambers structure.
 
It is fair to say that the Bar has been very successful over the past decade in responding to the increasing challenges of modern practice.  With the emerging potential for much more radical change and at a much faster pace, its ability to evolve is likely to be tested yet further.  The strengths of quality, specialisation and value will continue to be key but this will need to be combined with more astute management than ever.
 
As we all know, it is one of the main roles of the barristers’ clerk to reconcile the demands of clients with the expectations of barristers.  It looks as though our jobs could be about to get a whole lot harder.
 

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.