Barristers need to lead innovation at the Bar if they want to avoid sharing the fruits of their labours with external investors, the Bar Council chair said last night.
Nick Vineall KC also demanded that only those who have completed pupillage should be allowed to call themselves barristers, while highlighting work allocation as a major factor in pay disparities based on gender and race.
In a speech looking at what the shape and structures of the profession might look like in 20 years’ time, he said there was “no reason” why the traditional chambers model should not survive.
Indeed, there were “great benefits” if it did: “It tends to avoid conflicts problems; it means that there are no external investors to take a share of income; and very often there is in practice an attractive cross-subsidy of junior members of the profession by those who are more established.”
But he noted the recent investment in The Barrister Group – the business that owns 240-member Clerksroom – by LDC, part of Lloyds Bank. The barristers contract individually with Clerksroom for clerking services in exchange for a percentage-based fee.
Mr Vineall said: “This sort of model is interesting and may offer benefits for clients, and for the external investors. What is less clear to me is the long-term benefit for barristers.
“The history of outside party investment in solicitors’ businesses, for instance Inces and Plexus Law, has so far not been one of conspicuous success, but it may be that this, the first such example at the Bar, will turn out better for the equity investors.”
If so, barristers should consider what that means for them: “Perhaps if there is some monetisation available by investing into our traditional clerks’ rooms structures, we might prefer it if we as barristers were the investors in that innovation – and therefore the owners of the benefits that might come from such innovation.
“And if we don’t do that, we should not be surprised to find that the fruits of our labours – our fee income – has to be shared with the external investors who were prepared to take on the risk of investing.”
Mr Vineall first highlighted his concerns about the fact barristers are called after completing the Bar training course in his inaugural address as chair in January.
He returned to it more forcefully last night, explaining that, of those under 50 years’ call, there were currently 17,304 practising barristers, 10,412 unregistered barristers who have practised in the past, and 37,013 unregistered barristers who have never practised. ‘Unregistered’ is the term used for non-practising barristers.
Mr Vineall said this caused “a real risk of confusion for clients”, while the mass of unregistered barristers “creates an unfair financial burden on practising barristers”, as they paid for the regulation of unregistered barristers.
Unregistered barristers who have never been entitled to practise accounted for over a quarter of cases that reach the Bar disciplinary tribunal, he said.
The KC suggested that some people embarked on the Bar course knowing they have little prospect of securing pupillage but “console themselves with the idea that, even though they may never be able to practise as a barrister, they will become a barrister, nevertheless”.
He continued: “If the profession of barrister is going to continue, it must mean something. The title ‘barrister’ must be meaningful. At the moment, it means only that you have completed the Bar course. So there is no connection between the title and what you can do.”
With some people keen to see all lawyers regulated according to function, not title, the current situation made “the job of our critics easier”, Mr Vineall added.
“My own view is that we should call people to the Bar only when they have satisfactorily completed pupillage, with some sort of provisional call or provisional practising certificate to cover the second six. The Bar Council strongly supports such a change.”
On the Bar’s demographics, Mr Vineall said Bar Council modelling suggested it was likely to stabilise in size over the next 10 years with about 18,000 practising barristers.
The intake to the Bar “very closely reflects” the general population in terms of gender and race.
But he admitted the Bar Council did not have “a very good handle on is how the social background of the practising Bar compares with the population as whole”; such evidence as there was showed a heavy bias of privately educated people.
He acknowledged the Bar and the inns of court “can be very daunting, very off-putting, for those who come from what are sometimes called non-traditional backgrounds”.
“What we ought to be interested in when we recruit to pupillage is potential – how good a barrister you can soon become, and that may not be exactly the same as what grades and extracurricular activities you can put on your CV.”
Mr Vineall announced that, from 2024, the Bar Council and Tribepad, which provide the applicant tracking system on which the Pupillage Gateway runs, would be working with Rare Recruitment to integrate Rare’s “extremely impressive and carefully developed contextual recruitment tools”.
“Whether or not to use these tools will be a matter for chambers,” he added. “You might for instance use it at the stage of inviting people to interview. The cost will be included in the gateway subscription fee so there will be no separate cost.”
He continued that progression and retention were where the Bar needed to focus its efforts. The Bar Council will next month publish its annual report on earnings disparities based on gender and race, and the KC said “some of the work we have done with individual chambers suggests that there may be hard-to-justify disparities in work allocation in the very early years of practice which can have a lasting impact on career trajectories”.
He added that the Bar Council’s data on disability was poor, “but we continue to try to improve the support available to those disabled people who can, with reasonable adjustments, build a successful practice at the Bar”.