Commercial and Chancery Bar: First response
The Bar Standards Board's paper on the future of the profession may run to 50 pages, but the prospect of major change at the Bar has girded senior barristers into responding - and they are taking a conservative line, as Alex Aldridge reports
March 05, 2008 at 09:13 PM
13 minute read
The Bar Standards Board's paper on the future of the profession may run to 50 pages, but the prospect of major change at the Bar has girded senior barristers into responding – and they are taking a conservative line, as Alex Aldridge reports The Bar Standards Board's (BSB's) consultation paper on the future of England and Wales' 14,000 barristers is an important document. The 50-page tome might not make holiday reading, but every barrister intending to stay in the profession should read it.
The one-year-old BSB is taking on the mammoth task of consulting barristers on what the future of the profession should be, in the light of the Legal Services Act's provisions – some of which are expected to come into force next year. The BSB is inviting comment on issues including: alternative business structures (ABSs), which allow barristers to work in the same organisation as other professionals such as surveyors or accountants; legal disciplinary partnerships (LDPs), which allow solicitors and barristers to form partnerships; partnerships among barristers; and the ditching of the cab-rank rule.
The first stage of the consultation will close in early May, after seminars have been held to discuss the issues raised in the BSB's document.
Although the Legal Services Act does not directly cause any changes to what barristers actually do for a living, the provision permitting a non-lawyer to own up to 25% of the equity in a law firm is widely expected to bring about a loosening of the regulations that govern how they can practise.
"Given the underlying intention of the Legal Services Act, I have difficulties seeing how the BSB could object to barristers forming partnerships or ABSs," says Graham Reid, an employed barrister at Reynolds Porter Chamberlain (RPC).
Not that members of the commercial and Chancery Bar seem overly worried by the prospect of such changes.
"I do not think we should be afraid of partnerships, LDPs, ABSs, whatever – we should simply say: 'Let barristers practise using any business model they wish.' It is not as if they are saying we ought to or must practise in partnership," says Catherine Newman QC of Maitland Chambers.
Underscoring this laid-back reaction, which is echoed across the commercial and Chancery Bars, is a confidence in the effectiveness of the self-employed business model.
"Very few at the commercial Bar will actually choose to practise in partnership. One of the ways a set of chambers is successful is because the barristers within it can all act against each other. Of course, that would not be possible with these new structures," says Commercial Bar Association chairman Ali Malek QC. With law firms testing the limits of the rules on conflicts of interest, however, this argument may not hold water with everyone – is there any reason Chinese walls would not work in a partnership of barristers?
Nick Hill, senior clerk at 3 Verulam Buildings, agrees with Malek: "The chambers model works. If partnerships are permitted, I do not see many commercial barristers taking up the option, as they would be conflicted out so regularly and ultimately have to pass up a lot of work."
Neither, according to Anthony Speaight QC of 4 Pump Court, would partnerships be in the best interests of consumers. Playing the consumer card in the argument against partnerships weighs heavily in favour of keeping the status quo: "The partnership model would not only be bad for us, but consumer choice would be eroded. The effect of not being able to select a barrister because he shared a chambers with the guy instructed by the other side would be to seriously reduce the options available to the public."
Inevitably, there are some concerns that rule changes could be the beginning of a slippery slope.
"It is all well and good to say it is permissive and barristers will not have to join partnerships," says Murray Rosen QC, a former barrister who requalified as a solicitor and is now a partner at Herbert Smith. "But who knows what could happen? There may be a situation a few years down the line where those operating independently face huge pressure to join partnerships."
However, Rosen does not see those pressures affecting the top-end commercial and Chancery sets: "There will always be demand for that high-level, specialist service – and if that is most effectively delivered through the self-employed chambers model, then it is difficult to see it changing."
End of the line for the cab-rank rule?
Perhaps the most significant aspect of allowing ABSs, LDPs and partnerships among barristers would be the impact that these business structures could have on the cab-rank rule – which requires barristers to take on a case brought to them.
In view of the fact that the cab-rank rule has been lifted for employed barristers, the Bar Standards Board accepts that it would be difficult to apply it to barristers operating in partnerships with solicitors or in ABSs. However, it recommends that the rule should continue to apply to partnerships of barristers. Chancery Bar Association chairman Michael Todd QC backs this approach: "It does not make sense to expect barristers in LDPs and ABSs who act in a similar way to employed barristers to follow the cab-rank rule. However, if barristers are working like self-employed barristers, but within a partnership, I do not see why they should be treated any differently from a conventional self-employed practitioner."
The BSB goes on to state that there may be legal difficulties – in terms of restrictive practices – in applying the cab-rank rule to partnerships of barristers but not to barristers practising in ABSs and LDPs. It then asks: if the rule were to be lifted for barristers in all types of partnerships, whether or not in the spirit of creating a level playing-field across the profession, should it be scrapped altogether?
Although an admirer of the cab-rank rule, Malek accepts that it may be unfair to apply different rules to barristers in partnerships than to those practising independently. "The reasoning behind the suggestion that the cab-rank rule be removed completely is compelling. On the other hand, it would be a matter of regret to see such a fundamental principle go. If it was abolished, I would hope that the idea behind it would continue to be regarded as important and still applied on a voluntary basis.
"The danger if the cab-rank rule were abolished," Malek adds, "is that barristers might find themselves inclined to avoid certain cases on the basis of perception issues. For example, there are firms of solicitors who will not take on anything against certain investment banks because they do not want to upset people. At the Bar, such compromise would never enter our minds. Without the cab-rank rulee well, who knows?"
Other barristers play down the cab-rank rule's importance, pointing out that there are already unofficial ways around it. While Declan Redmond, senior clerk at Wilberforce Chambers, believes that the 'open to everyone who is able to pay' mentality of the commercial and Chancery Bar would continue regardless of whether or not the rule was scrapped: "The nature of barristers is that they will still accept the first available job."
Branching out
While there is a broad acceptance of rule changes that enable the adoption of new business structures, practitioners are rather less comfortable with the idea of any code alterations that would allow them to provide litigation services in similar ways to solicitors.
"There are thousands of lawyers out there who provide litigation services – they are called solicitors," says Speaight, adding, "What is the benefit of barristers providing those services as well? What is the benefit of setting up the infrastructure? I just cannot see it."
Chief among concerns is that handling client money would drive up insurance costs, resulting in an increase in the relatively low prices commercial and Chancery barristers are able to charge. "Higher overheads will undermine one of our major selling points, which is price. We are cheap -half the hourly rate of solicitors," says Speaight, adding: "Being good value will hold us in good stead in the future when a lawyer sitting at his desk in Tesco has to decide who he is going to call up for specialised advice."
There is also concern that branching out into litigation services would run counter to the other major ace that commercial and Chancery barristers hold – specialist knowledge. "People come to barristers because of our depth of knowledge on niche areas. That is one of the great strengths of the Bar. Why would we want to perform other duties? We should focus on what we are good at, which is specialised advice and advocacy services," says Todd.
Todd also voices concern over the loss of independence that could result from barristers getting involved in areas traditionally reserved for solicitors. "The great thing about having a divided profession is that there are lawyers who can say to a client: 'you have not got a case' or: 'you are wrong'. At the moment, barristers do not have a continuing relationship with clients like law firms do; we do not have retainers. Those kinds of relationships can cause pressures."
Who should regulate what?
If, as expected, barristers are allowed to form partnerships and ABSs, one rather tricky question remains: who should regulate these organisations?
One view, advanced by Todd, is that the BSB should continue to regulate all barristers, regardless of their function. "It would be rather curious for a member of the Bar entering into one of these new business structures to say that he wants to be regulated by someone other than the BSB," he says. "Quite frankly, the Bar launches itself as one Bar – that is how the Bar Council sees us – so it seems right as a matter of principle that it should be regulated in the same way."
However, if rules preventing the provision of general litigation services are relaxed, it is difficult to see how the BSB – an organisation whose expertise lies in monitoring functions related to practice at the Bar – would effectively regulate barristers undertaking tasks more usually associated with solicitors.
It is suggested that the BSB would not be interested in constructing a complex regulatory model to cover the provision of solicitor-type services – not least because it would demand the creation of a compensation fund (to which all members of the profession would presumably be required to contribute) in order to protect against any losses arising from the handling of client money.
The most likely scenario, therefore, is that services typically associated with solicitors – such as letter-writing, general litigation and the handling of client money – would fall under the remit of the Solicitors Regulatory Authority (SRA), and work of a barristerial nature, such as advocacy and associated services, would be regulated by the BSB.
One significant complication associated with such a model is that it would require the BSB to regulate solicitor-advocates (who are currently under the remit of the SRA and subject to what are widely perceived to be lower standards than barristers). If the BSB were to regulate all advocacy-related work, barristers would be likely to insist on the application of a common standard to all advocates.
Response rate
Reponses by individual members of the Bar to consultation papers are traditionally low, and many see this latest paper as unlikely to shake barristers out of their long-held aversion to engaging with regulatory issues. "I do not expect there will be a vast number of individual responses. That is just not the way the Bar works. Frankly, we do not have a lot of time to answer consultation papers," explains Todd.
Others view the fact that this consultation deals with key issues that go to the heart of the identity of the profession, as likely to provoke a larger than normal response. "People have been reading a lot about the Legal Services Act. I think this document will get more replies than most consultations," says RPC's Reid.
Julia Beer of the Young Bar Association agrees: "The consultation paper deals with such a fundamental change that I feel it will be given appreciably greater weight both by individuals and the various Bar organisations. We are certainly highlighting it strongly through our circuit representatives."
Bar Council chairman Tim Dutton QC emphasises that any reform allowing partnerships between barristers,
LDPs and ABSs would take a phased approach – with the first stage involving the approval of partnerships and LDPs, and no ABSs being licensed until at least 2011.
However, he is keen to convey that the Bar Council is taking the consultation paper very seriously. "We have asked all the circuits and the specialist Bar associations to take a keen interest in this consultation, as it is plainly important," says Dutton. A working group, which I am chairing, has been set up that contains representatives from the various Bar associations. We will prepare a response that will go to the general management committee of the Bar Council in the spring, and then to the Bar Council itself at its meeting on 10 May."
Although eyebrows have been raised at the sheer number of policy documents that the BSB has churned out during its first year of operation, the general view is that the organisation is making a decent stab at a hugely challenging task.
"Parliament's moves to reduce the distinctions between barristers and solicitors and the simultaneous enthusiasm among practitioners to maintain an independent Bar creates quite a balancing act for the regulator," says Herbert Smith's Rosen.
Nevertheless, there is a belief that the BSB has the potential to succeed. Malek points out that "there are some practitioners of outstanding quality sitting on the board, and the quality of material that they have been producing is first-rate. They are more than capable of coming up with decent recommendations that most barristers will support".
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