Every chambers, “from the most vulnerable of publicly funded sets to the most smug and complacent of specialist, privately funded sets”, needs to prepare for change, with the Bar’s ProcureCo model opening up “hundreds of millions of pounds of work” to barristers, the chairman of the Bar Council said on Saturday.
Addressing the annual Bar conference, Nicholas Green QC also expressed his “moral qualms” about the number of students trying to enter the Bar compared to the number of available pupillages, and about how many of those who fail to find vocational training are instead creating a “paralegal workforce”, saying the aptitude test being introduced for bar students may not be enough.
Mr Green emphasised the importance of chambers embracing ProcureCo – which enables them to bolt on a commercial entity – as a way of tapping into work from companies and local authorities whose procurement rules require them to contract with “entities”.
“If we want [corporations’] work, and we most certainly do, then we will need to use a ProcureCo type vehicle in order to obtain it. The same goes for local authority work. We should be a godsend to local authorities who need to reduce costs but maintain quality. Some local authorities I have been speaking with have suggested that, once again, the absence of a single entity with which to contract can be an obstacle to sending the Bar more work. So, if this is true, chambers should quickly cure that problem and set up a ProcureCo.
“In my estimation, and this might be conservative, there are hundreds of millions of pounds worth of work which the Bar could obtain, but which it is presently unable to service because of a perception by clients that we are not easy to contract with.”
He also called on barristers to gear up for direct access and broaden their international horizons, but emphasised the importance of continuing to work with solicitors. “Change does not mean a destruction of old, longstanding, friendships. There will be, over the next few years, some jockeying for position, but at the end of it it will become plain to our solicitor colleagues that not only do we remain complementary to their skills, but we will also have work to allocate to them. We should be promoting greater symbiosis as the way forward.”
Mr Green said that pupillage numbers have “dramatically plunged” from 562 in 2007/8 to 464 in 2008/9 and 460 in 2009/10, although that last figure is “still evolving”. Meanwhile, each year about 1,800 law students undertake the Bar exams and “each year competition for pupillages intensifies as last year’s unsuccessful applicants vie for an ever decreasing number of pupillages with the current year’s output of newly called barristers. Over 4,000 applicants are now routinely competing for about 460 places.
“On one view, this is extremely good news for the Bar because the quality of intake in pupillages is quite extraordinarily high. The genetic makeup of our young practitioners is alpha double plus, but to my mind the statistics reveal both a moral and an economic problem which we have neither grappled with, nor properly understood.”
The moral problem is “a system of education which encourages universities to educate more and more law students”, running up large debts, only to find a job very hard to come by.
“Surely we have a moral responsibility not to encourage those students who, on any realistic view, have no prospect of ever succeeding?” Mr Green continued. “I simply do not accept the ‘volenti’ argument, that students know the risks and voluntarily assume them. However much the profession or even the educational establishments attempt to tarnish the rose-tinted picture of the prospects of success, young, enthusiastic and aspirational young people still come forward. A review of the websites of the educational establishments makes it quite clear that stark realism is far from being the order of the day.
“For this reason, I welcome the work which the BSB has been conducting to attempt to address these issues through an aptitude test. I doubt this goes far enough, but it is in my view a step in the right direction.”
The economic issue is that many of those students who do not find a pupillage “swell an ever increasing pool of paralegals offering their services at rock bottom rates”, Mr Green said, pointing out that law firms are using them to conduct unreserved legal work. He said he had come across companies putting together “litigation units” made up of paralegals to offer services to solicitors and barristers.
“I have also come across individual barristers and sets of chambers, who have discovered the cost benefits of these lawyers as well. If entity regulation and direct access are introduced by the Bar Standards Board, as is likely, then chambers can use corporate vehicles to employ providers of reserved and indeed non-reserved legal services. Forward-looking sets seeking to capitalise on this greater freedom of action are already looking beyond ProcureCos to SupplyCos and how these might operate in conjunction with a set of chambers and how the burgeoning band of paralegals can assist in providing a full litigation and advocacy service.”
“This seems to me to be one of the major issues of the day and one which the profession needs to grapple with sooner rather than later,” Mr Green concluded.