Criminal law barristers need to consider significant changes to their business models if they are to remain competitive, the Legal Services Board (LSB) has argued.
In its submission to the Ministry of Justice-commissioned Jeffrey review of the provision of independent criminal advocacy, the LSB identified continued market liberalisation as one of the reasons the government did not need to intervene.
Promoting competition between and within each branch of the profession and allowing new business structures are the methods “most likely to result in better-value and better-quality services”, it argued.
Urging liberalisation as soon as possible, the LSB said this – rather than protection “for certain types of historical business models” – is the best way to preserve and enhance access to justice in criminal work.
With barristers able to apply to conduct litigation from next month, and the Bar Standards Board set to apply for the right to regulate entities, the LSB said new models “could include increasing scale to drive efficiency, increasing utilisation by forming broader legal practices, or utilising non-barristers to undertake lower level work at a lower cost.
“In some cases, this may mean forming ABS with employed solicitors. It may also mean operating chambers much more like a firm rather than a collection of individual businesses, with legal as well as administrative support.
“This could be achieved by employing paralegals to undertake work that is within their competence at lower cost.”
The LSB acknowledged that this will require a “cultural, as well as commercial, change among self-employed barristers, many of whom remain wedded to the historical chambers model. BSB research from 2011 found that the reasons most often cited for this was the ‘independence, autonomy, control over their working life and flexibility’ that the model allows.
“The challenge will be to find new patterns which achieve these benefits at a cost which purchasers find acceptable.”
The LSB questioned why more criminal advocates do not diversify their practices into other areas that are “busier and/or more remunerative” – especially given the introduction of public access – and suggested that changes in training and education may have a role to play to enable individuals to move flexibly between practice areas.
It said “we agree with those who argue that students should not be compelled to choose too early between advocacy and other forms of practice”.
The LSB said it could not identify any problems in the criminal advocacy market which require government intervention. There are sufficient criminal advocates at each tier of the criminal courts to deal with demand – indeed, the LSB said there is an oversupply – with some “already starting to adapt to meet the challenges in the way that this market is developing”.
It also called on regulators to implement the Quality Assurance Scheme for Advocates (QASA) “on the fastest possible timescale”. The High Court has still to hand down its ruling on the Criminal Bar Association’s challenge to QASA’s legality.
The LSB said QASA will for the first time provide data on whether solicitors or barristers are responsible for “quality shortfalls” that arise in criminal advocacy.