On 15 December, 2004, Sir David Clementi issued his highly anticipated review of the regulatory framework governing the legal profession. Among the findings of this far-reaching report is the conclusion that the restrictive nature of current business structures in the profession can no longer be justified as being in the public interest.

Most significantly for the Bar, Clementi makes two 'facilitative' proposals for the establishment of alternative business structures that, if implemented, would remove restrictions that have formed the cornerstones of legal practice as we know it.

The key proposal is that, with the creation of legal disciplinary practices (LDPs), solicitors and barristers should be allowed to form businesses together and with other professionals that can be owned by outside investors as long as the businesses themselves are managed by lawyers.

The second, linked finding is that there is no reason – on competition grounds – that there should be any restriction on barristers entering into partnership with one another, and Clementi urges the Office of Fair Trading (OFT) to continue its review of this area.

A report with such a wide remit and potential for widespread reform was never going to please everyone. And initial indications are that the Bar Council is one party that is far from in agreement with the thrust of the proposals.

In Bar Council chairman Stephen Irwin QC's speech on 15 December, 2004, following publication of the report, he was critical of some aspects of the proposal and warned that, "above all, any changes must not be allowed to compromise the fundamental independence of lawyers".

But what is the reaction at the Bar 'on the ground'? Do barristers welcome the creation of LDPs? And is there a case to be made for barristers overhauling their traditional working structures and going into partnership with one another?

According to one senior clerk of a large commercial set, the response to these proposals has been "absolute silence", and it is certainly true that many barristers appear to be in denial of the report's existence. However, dig a little deeper, and the Bar has very strong views indeed.

As far as LDPs are concerned, there is a question mark as to whether, in any event, many law firms would make the jump to LDP status, thereby incurring the additional stringent regulations of LDPs proposed in Clementi's report. If they do not, the question of whether they would then go into partnership with barristers would simply never arise.

But in the event that firms do convert to LDP status, law firms, especially those at the fore-front of commercial litigation, could incentivise barristers to join them by offering ever-tempting partnerships and management roles in the firm.

Many barristers are gloomy about the consequences for the Bar of such a sea change. George Bompas QC, head of chambers at 4 Stone Buildings, warns against a "knee-jerk reaction" by the traditionally conservative Bar. "Before one rejects [the proposals] one needs to test the arguments," he says.

But a large number of barristers have already concluded that LDPs will not work, and some believe that they represent a threat to the Bar itself.

The problem identified with the LDP model, as shared by the current advocacy unit model, is that firms will be unable to employ the 'right' number of barristers to cover their caseload, which will vary from interim hearings to six-month trials.

Edward Walker-Arnott, who sat on the advisory panel for the Clementi report and who is a former senior partner and now consultant at Herbert Smith, says: "A solicitors' firm is not going to take on an advisory unit unless it is confident that there is already the work for it, or will be shortly."

However, many barristers question the economic sense of having in-house trial lawyers as opposed to instructing the independent Bar on an ad hoc basis. "A law firm is never going to take on enough barristers to do all cases and may have to sub-contract to cover the workload," says Paul Shrubsall, a senior clerk of One Essex Court.

Employing enough barristers to cover all of the firm's cases at any one time would be likely to mean some would have no hearings at times. And unlike the independent Bar, in-house barristers would not have access to their largest client pool – other law firms.

"As a barrister you can be instructed by any number of firms and their clients," says Robert Graham-Campbell, chief executive of 7 Bedford Row. "A law firm will have only a limited number of clients, and so will have only a limited number of cases a year."

A further issue identified is that clients, who traditionally have had the entire independent Bar from which to select a barrister 'tailored' to their particular case, may not wish to instruct those barristers employed by the firm. As one head of a large commercial set says: "Clients perceive that they do not have the freedom of choice."

Walker-Arnott agrees it would not be good business sense to bar clients access to barristers practising independently. "The client will determine whether [the barrister selected is] in-house or independent," he says.

And while an LDP may be able to employ top-quality barristers, for a high value or particularly complex case, there is little doubt that clients would continue to want to have the range of the independent Bar.

"The stars at the Bar are not likely to feel the need to become advocates in a law firm," says Graham-Campbell. "And won't [clients] want to have access to the big names?"

In addition to these logistical issues, there are those who believe these proposals, if implemented, would cause a drain on the already fragile Bar.

One senior source at a top commercial set suggests that the proposals would be likely to increase the number of barristers leaving the Bar and working for law firms. "At the moment, what QC who was any good would want to go and be an employee in an advocacy department?" he says. "They would have no say in what was going on. But if [the LDP] said come and work for us as a profit-sharing partner, this would be offering a first class structure."

There are some at the Bar who are concerned that this ability of LDPs to offer a significantly more attractive package, combined with the security of private practice, could ultimately be damaging to the Bar.

Bompas adds: "The real problem is that it is more likely that, if there is a rush to join large firms, the existing Bar will be weakened and this will make it harder for young people to start at the Bar."

Bompas also warns that LDPs would strengthen the trend for barristers to move away from the independent Bar. "There have been barristers who have gone to work for solicitors, but the trend could accelerate and would be likely to do so if there were LDPs," he says. "It might not be a matter of this year or next year, but in 10 years or so."

One further area of concern is that the ability of barristers to become partners – in an LDP or in chambers – could compromise the complete independence of the Bar, which enables them to give advice uninhibited by any considerations other than the facts of the case.

"The independence of the Bar is one of the fundamental good things in our legal system," says John McDonnell QC, head of 13 Old Square. "If the Bar becomes obsolete or gets smaller, that is just evolution. All that matters in my mind is the effect on the public and the legal system, and I think these proposals are utterly pernicious."

So what of the proposal that barristers should be able to enter into partnership with one another?

Robin Potts QC, head of Erskine Chambers, captures the general sentiment of the Bar when he says: "I cannot see any advantage [of part-nership] for either clients or barristers or chambers." Barristers are almost unanimous that the only outcome of partnership for a chambers would be a loss of work due to conflicts of interest. Currently, self-employed barristers in the same chambers can represent various interests in one case including acting for opposing parties in litigation.

"The ability of barristers to conduct cases on different sides once in partnership is no longer realistic," Bompas says.

In the event that they were in partnership, barristers' shared interests would put them in the same position that solicitors find themselves in today: with the right to act, even with 'Chinese walls' in place, being continually eroded.

There is a commercial argument that the conflicts of interest issue would not be as great as appears at first blush: the same number of cases would still exist, and chambers that lost a case because of a conflict of interest would also gain one for the same reason.

However, while this argument may apply to general commercial chambers if all were to convert to partnership, few, including Clementi in his report, disagree that chambers such as specialist Chancery sets would stand to gain very little from partnership.

Edward Nugee QC, head of Wilberforce Chambers, says: "Particularly in Chancery chambers, barristers may be involved in complex trust and pensions cases where different interests are represented by barristers in the same set, and it is often more efficient and economical if they are.

"Because they are sole practitioners, they are perfectly capable of taking an independent view on behalf of their client. If they were in partner-ship, two members of the same set could not act for parties with opposing interests."

From a competition perspective, some argue that the client's choice would therefore be restricted by partnership. And following recent trends of sets merging and increasing in size, these restrictions could be significant. Peter Bennett, chief executive of Maitland Chambers, says: "As chambers get bigger, for example 180 barristers, that means 179 people who cannot act [in a certain case]."

Barristers argue that the perceived advantages of partnership – for example, security in the event of illness and the ability to raise capital for chambers – are in fact no advantage at all. "No doubt there are barristers who would be interested for security reasons," says Shrubsall. "[But] the price is independence and freedom – and sole practitioners all drive themselves very hard."

However, while many barristers argue that their sole practitioner status allows them the freedom to regulate themselves and not be answerable to anyone, Graham-Campbell suggests this is more a matter of perception than reality.

"Barristers already have a sense of responsibility to chambers," he says. "The way they operate is not necessarily different. Large chambers may own their own building and have a fairly corporate modus operandi – they typically operate through shared clients and take business decisions through committees."

With regard to the ability to raise capital, most heads of chambers and senior clerks at the largest sets spoken to by Legal Week said that raising funds had never been a problem and that partnership would be of no advantage in this regard.

"From my experience of the Bar, it has never been a problem to find finance for investment in business or technology," Bennett says.

Chambers that reject partnership out of hand may, however, be missing a trick. Barristers, like solicitors, and particularly those at smaller sets, are increasingly under pressure to enter into conditional fee agreements (CFAs), for example in personal injury cases.

More and more solicitors are jumping on to the CFA bandwagon, but this is less surprising when they are able to pool the risk of doing so. "The ability to pool risk is not available to the Bar, so a CFA for barristers is a personal risk," says 7 Bedford Row's Graham-Campbell. "The possibility of barrister partnerships may well be a sensible business model to consider."

It should be remembered that Clementi's proposals for both LDPs and barristers being able to enter into partnership are that restrictions should be lifted, not that there should be any direct obligation to enter into such arrangements.

Still, hostility towards these changes remains widespread at the Bar. Certainly on the heels of solicitors gaining higher rights of audience and advocacy units already being established in law firms, these changes, they fear, may represent further in-roads into the profession.

It is true to say that not all barristers harbour enormous concern about the impact of these proposals on the Bar. Ian Mill QC, joint head of Blackstone Chambers, echoes the sentiments of some barristers when he says that while his chambers has no interest in partnership, "we do not regard what other people might do as a threat. It is business as usual".

But as far as actively welcoming the proposals or finding a case for partnership, the Bar is still largely on one side of fence. The opposite side, it would seem, to Clementi.