Is there an “existential threat” to barristers”

The Bar Council conducted a survey recently of chambers nationally, and got 157 replies.  Their report makes worrying reading, because they see an “existential threat” to barristers generally. Their findings show that regional chambers have been affected worse by the pandemic crisis than London ones, and that 31% of regional sets believe they will collapse by the end of the year, compared with 16% of London ones. The Bar Council said this would have ‘serious implications for access to justice’, particularly in areas with fewer barristers. In addition, the survey found that barristers doing publicly funded work have been hit hard, and they record a prediction that 86% of chambers that receive the majority of their income from criminal work will disappear within a year, the reason being, no doubt, that a quarter of publicly funded criminal sets are said to have had a drop in income of 80%.

These are worrying, but sadly not surprising, findings. The coronavirus has hit almost all businesses hard, and of course barristers are self-employed, which can make the impact even worse. If the court doors are shut, as they have been, it’s inevitable that lawyers who spend their lives in court will suffer grievously; that applies to many or most criminal barristers, and to quite a lot of civil ones. Because my Chambers are multi-disciplinary, we can see very clearly what the impact is on all our different areas of practice, and on all our individuals (nearly 200). In addition, of course, we have to manage the impact on our wonderful staff (over 50), some of who have been furloughed. My heart goes out to all barristers, and chambers’ staff, not just in my own Chambers, who are suffering as a result of Covid-19.

I’m sure that the object of most chambers is merely to survive right now but, for those who do, surely the time has come when we should start to run our businesses on modern lines?

To start with, I think we should all have a clear business model. There will be many different variations, depending on the aspirations of the members of chambers, ranging from narrow speciality to full service, and from local to national and international. When creating and developing that model, we need to consider the risks and the benefits; specialisation allows us to master our field of work, but sometimes at the price of becoming vulnerable to outside forces; years ago, the personal injury bar was petrified that the withdrawal of legal aid would ruin our livelihoods (in fact, the reverse happened, but that could not have been foreseen). The downward pressure on fees in publicly funded work, the introduction of fixed fees, the change in personal injury costs levels, and increased commercial pressures, are all part of the ongoing landscape, and all pose a threat if chambers are over-committed.

Speaking to other chambers who are multi-disciplinary, it’s clear that they feel that this is a significant strength in this time of crisis. Traditionally in the North, criminal sets have been common and strong; when I started, we did mostly crime, and did well; but in those days life at the Bar was a lot easier! Now, being multi-disciplinary is very protective against many, but not all, crises.

An almost inevitable consequence of being multi-disciplinary is size. Increasing numbers for its own sake may not be a good thing, but when it is the result of a careful business plan it does have some undoubted advantages. Increased revenue allows increased expenditure, which enables wider business support, for example business development, marketing, branding, PR, IT, HR, internal and external training, web site management, search engine optimisation, and a high quality management team.

Geographical spread is also useful, although less of a cushion in hard times, because the threats that continually arise tend to affect all areas of the country. There are significant differences, though, as we see when comparing our offices in the North; Manchester, Leeds and Liverpool are all very different from each other. Familiarisation with video conferences and meetings will surely change our perception of geography; we’re discovering how easy it is, and how comparatively good. When I consider the hundreds of thousands of miles I’ve travelled all over the country, to see injured clients, I really appreciate what video can and will do for us in the future.

A rather more radical possibility is shareholder ownership; the shareholders being some or all of the barristers in the chambers, but maybe also the staff, and possibly outside investors. That might allow us to generate greater investment, expand more rapidly, enter more markets, spread ourselves wider, recruit more, develop expertise, and generally follow slightly closer behind the good firms of solicitors. I’ve always felt that well-managed chambers tend to do what good solicitors did about ten to twenty years previously, and you only have to look at them, not just the magic circle ones, to see the obvious direction of travel. Of course, there are serious risks for a set of chambers being owned by outside investors, as has been demonstrated in the commercial and solicitors’ world.

Good governance is now essential. It’s obvious from the commercial world that this is at the heart of success, and the same applies to us. What is clear to them, but not generally to the Bar, is that the senior positions in the management of the business (barristers and staff) shouldn’t be allocated on the basis of “seniority”. There should be a description of all important roles within chambers, for example head of chambers, committee chairs, finance “director” (treasurer), and everything else within the system which is dependent on the individual having relevant skills. The ability to advise and manage with skill and independence is perhaps rare, but certainly essential. I assume that some sort of managing committee or board is universal, but even so the composition of that group can make the difference between comfortable and efficient governance on the one hand, and division and rivalries on the other. It goes without saying that all those leadership positions should be allocated on merit.

Recruitment is increasingly important for a successful set of chambers. The days are gone when you could happily stand still, take on one pupil every year or three, and survive, thrive and prosper. Nowadays, it needs to be part of the business plan to work out areas of strength and weakness and business need, both within and without, and to create a recruitment plan to strengthen and develop practice areas of interest. Traditionally, recruitment has been stigmatised by the Bar as “poaching”, and has attracted a lot of adverse comment, but I think that people are now realising just how hard it will be to survive in the future. That should mean that barristers are more prepared to be mobile, and to actively consider and research what might suit their practice needs; which should allow more people to develop and achieve their ambitions.

Finally, possibly the single most important issue for the medium and long term; what are we selling? What is our real expertise? What do people (the public, solicitors, businesses, the government) actually want from us, and what do they need? What are they prepared to pay for? What are our real skills? In a word, what is advocacy? Over the years, the definition of advocacy has undoubtedly changed radically; it used to be very much court related, whereas now many or most barristers can spend weeks, months or years not going near courts.

Personal injury has been a prime example of that process; when I started in silk, trials were common, whereas now they are rare, and to be avoided if at all possible. Our advocacy is very different in the larger cases; seeing injured families, advising on treatment and rehabilitation, helping them to recover from the effects of the injury, and then managing the litigation so that they achieve fair compensation. Alternative dispute resolution has revolutionised our world, as it has done in other civil areas – settlement meetings and mediations take place in all substantial cases, and succeed in most. That means that negotiation skills become important in our world, but of course we have limited or no training, other than, for the enthusiast, researching how to develop that expertise.

Personally, I think that the old-fashioned (as I see it) way of always writing advices and opinions, as distinct from meeting the clients and discussing their problems with them, will gradually vanish, and be limited to those areas where a written document is essential. I haven’t done any written paperwork for about 25 years, and I’ve found that I can understand people’s worries and problems so much better by talking to them. Of course, with video conferencing on the rise, that will be easier, and may become the norm in some areas.

The Bar Council survey made five recommendations to the government – so far, none of them have been adopted. That emphasises to me an inevitable truth, namely that we’re on our own; we have to create businesses which will survive in an unprotected and competitive marketplace, and which can convince consumers to buy our specialist services. Of course, our strength is that people will always create issues and disputes, human nature being what it is, and that is the foundation of our product.

By Bill Braithwaite QC, Head of Exchange Chambers

 

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