The Bar Council is urging barristers to embrace public access. But, says John Binks, the reality of doing the work will come as a rude shock to many barristers. It can be done, but they will need to revisit the way they do business, including the chambers model
Bar Council chairman Peter Lodder, quite rightly, encouraged the Bar at its recent annual conference to take up public access as a stepping stone for developing business structures that will be eventually fit to credibly bid for price competitive contracts.
Such a move, in principle, makes sound economic sense, but how realistic is this for the average chambers?
Whilst in itself encouragement cannot be criticised, the Bar should take a measured look at what public access truly offers them, why greater advances have not been made since its introduction in 2004 and how well equipped they genuinely are to compete in a solicitor-dominated market where competition is set to become ever tougher.
What is the market for public access?
The chairman of the Bar speculated that some clients may chose privately paid public access as an alternative to legal aid in instances where contributions are particularly high. In crime, Bar Standards Board (BSB) regulations on direct access would not seem to permit this.
The BSB public access rules prevent accepting instructions in any proceedings in which it is likely the lay client would be eligible for public funding. If legal aid is available – even subject to contribution (ie, virtually all cases in the Crown Court) – counsel cannot offer direct access, whatever the clients wish.
There may be some scope for direct access crime work in the magistrates’ courts. However, with notable exceptions, as the Crown Court remains the preserve best suited to those with the training and skills of the barrister, the magistrates’ court remains the preserve of the solicitor. Can a barrister offer a service in a magistrates' court to match the services of a good local solicitor? In most cases, no.
The BSB guide for members of the public considering direct access offers its view on the competing advantages of the professions: “Barristers are trained as specialist advisers and advocates… they become involved where expert legal advice is needed, where documents need to be drafted for their clients to use, or for advocacy. Solicitors also give advice to and draft documents for their clients to use or may instruct a barrister to provide this service. Some solicitors also provide advocacy services to their clients, although many prefer to instruct a barrister to do this.”
The BSB, as independent regulator, seems to offer the public a singularly one-sided description of the comparative services offered. Chambers seriously planning to enter the public access market would accept the BSB assessment of the competition at their peril.
Private law ancillary relief is rightly indentified by Peter Lodder as an attractive area. The Bar should, however, recognise that this is equally the work that is the most financially attractive to many of its direct solicitor competitors. Despite the apparent BSB view, provision of expert solicitor advocacy in family matters, in addition to the expert preparation there has always been, is becoming the norm for the majority of solicitor family practitioners.
The best firms have invested many years in building and maintaining family client bases; they invest in expensive high street presences and have built firm or corporate-wide reputations. The wig and gown by comparison has for many years (so we are told) preserved the anonymity of individual barristers in the eyes of the public. In winning the work the Bar now desires, reputation is everything and anonymity is nothing.
Solicitors have invested heavily in building the client bases they have; it would be wrong of the Bar to think there is an open market into which they can now elect to move.
Dealing with a client direct is a particular skill
The ability to obtain detailed accurate instructions, sort the wheat from the chaff, and quickly build a relationship of trust that enables a case to be moved forward efficiently and effectively are hallmarks of a good solicitor.
The approach that may be taken to convince a client of an argument outside court is very different to that which would be employed in the more removed atmosphere of a solicitor’s office. These are skills that may be developed, but the Bar cannot assume that they already have the skills necessary to do this work.
Barristers may occasionally flatter themselves that they can effectively convince a client to accept an unwelcome reality when an instructing solicitor has for many months tried and failed. That conversation may, however, quite literally be at the door of the courtroom, when the client is under immense pressure and may be dealing with someone they met for the first time 15 minutes before.
Dealing with a client direct is very different from dealing with a client in partnership with a solicitor. Do the Bar recognise the differing skills required? The fact that the required training for a public access barrister is given within the course of a single day would indicate not. The skills that are truly required are either not understood or not valued by many at the Bar.
The requirements of the client
In many cases, client needs support; they need to be able to contact the person dealing with their case and discuss it with them, often on a frequent basis. In family matters this is not the exception – it is the norm.
Firms carrying out crime work have provided structured 24-hour services for decades; such services are becoming more and more common in family practices. In the age of 24-hour banking, clients expect 24-hour law.
Are barristers who may often spend the majority of their days away from chambers in court, and crucially without professional fee-earner back-up to support them back at chambers, really equipped to provide such a service?
It’s nice to get paid
There may have been a time when some solicitors would not be so indelicate as to require money on account in private paying cases. For the majority, those days (or those firms) are gone. The unbilled funds paid on account are, of course, ‘client money’ and relevant accounting rules, and an enhanced insurance premium not enjoyed by the Bar, do apply.
Counsel cannot request or take payment on account; their professional rules do not permit it. Chambers may currently feel they spend over-long pursuing solicitors, the Legal Services Commission and the Crown Prosecution Service for fees, but dealing with individual private clients is a whole separate issue they are not geared up to deal with. The inability to take payment on account is a major stumbling block.
How efficient really is the Bar?
The Bar’s first response to the question ‘why chose a barrister?’ is doubtless that a barrister is the cheaper option. The Bar would say the barrister is operating within a more efficient business model than the solicitor, evidenced by a far lower percentage overhead. This is an oft-quoted assumption.
A low percentage overhead may, however, be generated as much by a higher gross fee as by the actual efficiency with which the work is despatched. Further, the traditional role of the solicitor has been to provide for the Bar much of the back-office function it has needed to operate. The solicitor has been responsible for attracting and maintaining the client to deliver to the barrister.
The Bar must understand that there is cost associated with this process – it doesn’t just happen, and to date the solicitor has shouldered that cost. Additionally, within the solicitor model there is the potential for delegation of work, and the opportunity to split out single cases and ensure that at any point in a case work is not carried out by staff that are overqualified (or more accurately overpaid) for the task.
Admittedly not all solicitors are currently employing such efficiencies to their maximum, but in an ever more competitive market, the people with whom the Bar will be in competition will be. Barristers working within the chambers model simply cannot replicate this approach.
The Bar’s perceived direct access client is educated and erudite. They are able to give clear concise instructions of what they want. They will be cool, unemotional and organised. They will always keep their appointments. They will be patient with their barrister, never require advice as a matter of urgency and never ring up their barrister simply to ask ‘what is happening?’. They will understand that their barrister is a busy person. They will be a private payer – and they will pay.
The work the Bar seeks to target is, in reality, the cream of private client work. There is little of this around, and if it wants that work, the Bar should expect to have to fight for it.
None of the above should make the Bar turn from public access, and this is not an argument that it should. There are, however, issues that should be carefully considered and catered for within any business model designed to offer such services.
The time is past when the Bar can simply expect to announce the availability of the direct access barrister , even (as Peter Lodder tells us in the case of one chambers) in magazines published in ‘reasonably affluent areas’ and expect clients to arrive.
Models will undoubtedly be developed by the Bar which can compete, and which offer a springboard for price competition. Will it be the medieval chambers-based system that the Bar Council seems set on preserving? Probably not.
John Binks is a solicitor and founder member of the Bar Consultancy Network. He was formerly a senior manager with the Legal Services Commission and member of the Carter review. He is currently working with a number of chambers which are preparing for the future