COVID19: What’s in store for the Bar?

Traditionally the physical premises that Chambers occupies has been of fundamental importance to most barristers. Not only is the address of the bricks and mortar usually central to Chambers’ identity but it was the place where barristers and their clerks practised from, co-existed, met clients, left from to appear in court and returned to after a long day in court, gathered socially in afternoon tea and escaped to at the weekend to prepare for a hearing the following week. The bricks and mortar in a sense, were Chambers. In the space of six months in 2020 that has all changed. Society and its ways of doing things have been bounced forward by 10 years. The problem is that many barristers do not yet fully realise this. Like Central London, the Bar has suffered an extinction event but given the propensity of humans and especially those wedded to elaborate ritual and hierarchies to keep doing what they have always done, a shock awaits.

What’s Happening?

The Law Society Gazette reported on 11 August 2020 that one in 10 chambers has given partial notice on its lease in a bid to relieve financial pressure, which is consistent with the Bar Council’s prediction of a profession-wide move to flexible working.

Carolyn Entwistle, head of services at the Bar Council and chair of the Covid-19 working group, has said chambers have seen ‘very little increase’ in the number of members returning to the office and ‘some sets may never return to their previous model’.

The Gazette also reported that in a survey conducted by the Legal Practice Management Association and the Institute of Barristers’ Clerks, 10% of respondents said that their chambers had given partial notice on its lease, with a further 21% indicating that they are considering taking similar action in a bid to relieve financial pressure.

On the Bar Council’s website, Ms Entwistle said: ‘A reduction in the space available to chambers’ members and staff heralds the beginnings of change, with those same sets presumably planning to maximise on the reductions to their square footage and introduce “work smart” policies which offer greater opportunity for flexible working.’ and ‘It’s clear that many chambers are not planning to return to work now and that, having adapted to paperless working and a virtual working environment, some sets may never return to their previous model. What this will look like in reality remains to be seen but, for a multitude of reasons, it is a change that is arguably overdue and one that the Bar Council plans to support wholeheartedly.’

An example of a chambers at the sharp end of these developments is Charter Chambers. The Gazette reported on 14 August 2020 that Charter Chambers is to formally close on 30 October. They said that they had come to the ‘inevitable conclusion’ that courts are unlikely to return to normal operation until the government’s medical advice changes, a vaccine is found, or sufficient extra court rooms are provided – ‘something which to date [the government] has failed to demonstrate it has the ability to do with any speed at all’.

Neil Hawes QC, head of Charter Chambers, said: ‘It was this assessment – alongside a review of chambers’ own needs for its future – that led Charter to the unanimous conclusion that to continue as we were would inevitably lead us to depleting our financial reserves and result in the set entering into significant borrowing.’

Members were ‘not prepared to engage in such a business risk’.

This sad event leads directly to the heart of the challenge that COVID and the new ways of working involving WFH (“working from home”), video court and tribunal hearings with electronic searchable hearing bundles and video conferences with clients, bring. Like it or not: it’s all about costs.

Costs: the Elephant in the Room

The topic that few barristers wish, or have the courage to raise, but has been directly affected by COVID is the level of rents traditionally paid by chambers, especially those tenanted in the four Inns of Court in London. The arrangements differ from Inn to Inn with for instance Lincoln’s insisting on long leases at a rack rent typically with up to 18 months’ notice required while Gray’s allows tenancies with as little as three months’ notice.

Not much has been said publicly about the level of rents and whether chambers will, or more importantly can, continue to bear the current level of rents especially those that have suffered a dramatic fall in work levels. For a profession so laced with hierarchy and used to following the wishes of their elders in order to progress, challenging the level of rents charged by the Inns in the way that say, retail tenants have done widely with many simply refusing to pay in the context of the temporary suspension of eviction proceedings appears to be anathema. Moreover, the conflict of interest inherent in senior member of chambers who could give leadership on this issue also occupying senior positions within the Inns themselves means that any challenge to the current level of rents has been muted at best.

The Dam Will Burst

Despite this very civilized approach of keeping calm and carrying on where possible, desperation and debt is rapidly building within the profession. Barristers do not traditionally have capital reserves to fall back on in hard times and instinctively just try to work harder in response to existential threats. But that is proving difficult for many as the work is just not there and the level of fees that a barrister can command is being rapidly undermined by clients shopping around and barristers cutting their throats to get the work.

A reckoning is quickly approaching when there will be no money left to keep calm and carry on with. Rents will either have to fall and/or a new way of working will be found.

The New Way of Working

Like most seismic changes throughout history costs is a major driver. Cost savings through mechanisation and mass production drove the industrial revolution and continue to drive modern economies today. Despite government encouragement to return to the office large social media employers like Facebook and Google and banks like Schroders have said that employees can work from home permanently. Anecdotally 80% of office based civil servants continue to WFH. The reason for this is that business owners and bosses have through COVID realised that Zoom and the other technologies allowing staff to WFH or anywhere actually work. This opens up a huge opportunity to discard expensive office space in city centres and all the associated costs with having everyone gather in the same place each working day and having to pay for travel to meetings. The costs savings are enormous and can be banked now that the WFH technology has become familiar and works reliably.

While the Bar often likes to think of itself as different and apart from the rest of the economy, in terms of COVID it cannot buck the market and is going to have to adapt  to the new ways of working with cost savings a major driver.

What does this mean for the Bar?

I am going to stick my neck out and say that one word will be on most barrister’s lips in the next year or two when they think of their chambers and what the future holds for them. That word is “Virtual”. A good working definition of “Virtual” is not physically existing but giving the appearance of being so. As in “Virtual Chambers”. That is, either no physical bricks and mortar at all or at least a hugely slimmed down physical presence for the occasional client meeting or a base from which to attend the hugely reduced number of court hearings in person.

A Bar that largely WFH and attends court and holds client conferences by video. A Bar that embraces the virtual world as the rest of the economy is doing and whose presence moved on-line with intelligent and engaging websites that showcase the talents of the members involved and is interactive in allowing clients and others to engage with barristers directly via their websites. In short a Bar that no longer wants or needs eye wateringly expensive real estate in city centres, no longer needs to travel and can work more efficiently and paperlessly.

The Social/Pupillage/Junior Problem

In the move to virtual chambers concerns have been rightly expressed about whether the same social interaction can be maintained between members and importantly, the effect on trainees and juniors. Amanda Pinto QC, chair of the Bar Council, has said the ‘immediate advantages’ to downsizing need to be weighed against the ‘very important role a physical chambers plays in all barristers’ careers’. ‘This is especially so for those at the junior end and pupils, where chambers’ help is essential to establishing and developing a practice. Chambers is a great support for barristers not just by sharing professional expertise and friendship, but with wellbeing and mental health issues too. None of these advantages should be compromised in any moves towards alternative ways of working,’

The costs saving associated with virtual chambers will sweep all before it, if not out of choice then out of necessity. Ways will have to be found to maintain the society of chambers for example by regular Zoom teas and occasional social events in person. In chambers where pupils and juniors traditionally sit in the rooms of senior barristers then there is nothing to stop that experience being replicated via plugging the pupil or junior into the video hearings and conferences of the senior and indeed diarising a time each day to meet via video to discuss work and assignments given to the pupil or junior enforced by the clerks with a gentle reminder if needs be. If this is adhered to conscientiously then it may even turn out to be an improvement on the existing position.

Conclusion

Change is upon us and with apparently over 50% of the Bar either in financial difficulty or expecting to be so, in the near future change we must. The move to a virtual existence looks virtually certain.

 

By Patrick Cannon, LL.B, BCL, CTA (Fellow) and Barrister, www.patrickcannon.net

 

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