EVENTS AND ROUNDTABLES > Roundtable > 'Shaping the future of the Bar'
Senior clerks and CEOs: Shaping the future of
The Legal 500 Roundtable Discussion
The increased profile of chambers over the past five to ten years – both in the UK and internationally – has been remarked upon across the legal profession, but of course it does not come without its challenges. In this roundtable discussion, The Legal 500 hears from the change agents driving the Bar forward; at a time when competition is at its fiercest, we have brought together a group of senior clerks and chief executives to discuss what it takes to survive current market conditions and what makes a modern set of chambers.
In order to have a full and frank discussion, it was essential that this was done under the full cloak of anonymity. So, in July, we gathered at a secret location in London – read on to find out what we discussed.
Hayley Eustace, Bar and Asia Pacific editor, The Legal 500
Hayley Eustace: Thank you very much, everyone, for coming along today.
Welcome to the first Bar roundtable from The Legal 500. For a while, we have been thinking about putting on an event with senior clerks and chief executives; we have been mindful of the role that you play, and that has been reflected in our editorial over the last couple of years. You will have noticed that there has been more coverage on clerking and the service of chambers, as well as the increasing importance of practice management. What started off as more of an administrative role and business-support function is now a business-critical function, and that should come out in today’s discussion. This roundtable is really an extension and a new dimension to The Legal 500 Bar editorial.
Hopefully – as participants – you will find this useful but it should also be of inspiration to sets across the country. We want this to be a model for what makes a modern set of chambers. It should also be useful for barristers, providing insight into just how important a role you play.
I have been at The Legal 500 for six years, and in that time, the Bar has been through a period of significant change. For example, we have seen direct access take off; the English Bar raise its profile abroad, including six chambers open offices in Asia; the rise of CEOs, marketing teams and business development professionals in chambers; and the launch of entities and alternative business structures. Clearly, these are all positives but there are still challenges and constraints that you all face, hopefully some of which will be touched on today.
One of the issues that comes up most frequently in my meetings with chambers is how you manage a collection of individuals. John Flood, honorary professor of law at UCL, described chambers as being ‘in a schizophrenic state at the moment – they try to appear corporate and built up, while grappling with being made up of individualistic, self-employed barristers’. My question, then, to kick things off, is: how do you overcome that and how do you create a culture within chambers?
Participant 1: I think that is an interesting question. It is a challenge that we face: the collective versus individual. Following recent events, what has become very apparent is the importance of the strength of brand and brand recognition. I do not think we can underplay that. From an overseas perspective too, the strength of the brand becomes particularly important when you are talking about a set of chambers. Perhaps individual names are not as easily recognised, but a chambers’ name will be. I think that that is something that we can play to.
Where it becomes a problem, of course, is the question of independence. We have encountered it within the banking community, for example, where institutional clients will perceive you as their chambers and they do not always understand that barristers from the same chambers can be on the other side of a case. There is, then, need for education and communication on how the independent Bar works. While we promote the brand, you cannot do that at the cost of promoting the individual. It is certainly a challenge that is out there, but not something that cannot be overcome, as long as we are alive and sensitive to it.
Hayley Eustace: Many of you here today are from multi-disciplinary chambers, with people who are peddling, in some ways, in different directions. How do you manage that?
Participant 2: I think one of the challenges is making sure that everybody has a voice internally. Some practice groups can be seen as being financially stronger than others; others can have a more diverse range of cases but are operating in more cost-sensitive areas. This can present challenges, so you have to ensure that everybody has an equal voice. However, there does need to be a degree of control. I think that this is key, particularly as chambers have become much larger. Probably, all of us here started in chambers that had between ten and 25 barristers, which have subsequently grown and grown. Many of us here now have 70 to 100 barristers and that is a challenge, but the important thing is the voice and the relevance of everybody contributing to the success of chambers. You need to allow people to have a good degree of independence so that they feel able to express themselves. However, if you allow people too much input on day-to-day matters without any degree of control from the management board then this can become a problem. As chambers get larger, they are probably easier to manage, as there is a recognition that micro matters need to be delegated to the management board and clerks.
Participant 3: I think that was clear in my last set, where we had about a dozen different practice areas, including some that did quite nicely on the private side and others that were struggling on the publicly funded side. We went through a deliberate policy to recruit, and went up from about 90 to 125. You have to, however, control those practice areas so that not only do they feel they have a voice but they don’t get out of control and you don’t have 40 or 50 criminal practitioners saying, ‘We are not loved.’
The other side is the external ‘How do you build a brand around that?’ challenge, which has to be based just on the quality of the service that you provide. That, however, also requires good PR. With the good results that you get, you have to tell your areas of the market how good chambers is. A lot of barristers are not very good at saying, ‘Billy the barrister from this set of chambers did this’; it is, ‘Billy the barrister did this.’
Hayley Eustace: Going back to the point of managing individuals and making sure everyone has a voice, where do you all stand on committees?
Participant 5: I have been lucky in some ways because my longstanding head of chambers did not believe in committees. We had members responsible for staff and various things, but we did not have committees. I have always been against committees, because I think they are a complete waste of time. You have a strong management with a head of chambers, and you just get on with it. I have been allowed to get on with it. The world is changing, with new heads of chambers and more involvement with members of chambers, but we are still very much allowed to get on with it. In terms of barristers talking about things that a good clerks’ room can deal with, I think that is the best way forward. I have just been fortunate in being allowed to do my own thing.
Hayley Eustace: It would be good to hear a view from the other side; does anyone here have committees in their chambers?
Participant 1: We have quite a few committees, but what we do have is staff on each committee. The line of communication is there and the visibility is good, and I think that is what promotes what you were saying. You get that culture of everybody buying into something. That is probably the best way to do it, whether it is the brand externally or people internally promoting each other. I think that is how committees can help some things.
Participant 6: We have one committee and the rest is staff-driven. Going back to the individual versus chambers, and committees, I think the biggest struggle we have is getting every member, at some part of their career, to be part of the management of chambers or buy in to the management of chambers. Every two years, we have elections. You may be re-elected a few years down the road. That is going back to the individual versus chambers: everyone has their individual say but are they going to stand up and participate in the management and decision-making of chambers? Not a lot of people will.
Participant 1: That is part of the Bar. A lot of people want to be at the Bar to practise law; they do not want to be involved in management issues.
Participant 7: Because practising law is what they are good at.
Participant 1: Some members of the Bar transfer to the solicitors’ side, but we also see a number of solicitors transfer to the Bar. Often, the prospects of making partner and what is laid out in front of them for the next 20 years or so is not what they want to do. They can come to the Bar and can practise law, and they have a strong support team around them that deals with management aspects. I think you can overcomplicate the management of chambers. It is about just getting the temperature right in your own set, and that is probably why we all do things a little differently. Every set has its own culture. We need to keep things as straightforward as possible. We have committees. I am probably in a slightly more democratic camp, but you can spend a lot of time sitting around meeting rooms in chambers without anything really getting actioned. Delegated authority is critical.
Participant 8: This is a recurring theme for me. A lot of the issues that chambers collectively face all come about because of size. We now have chambers, as people have said, of upwards of 100 members. It is trying to use the chambers model for a way that it was never intended. It was never intended that you would have 100 individuals trying collectively to run a single practice. It just does not work. That is why I think that there is much to be said for boutique chambers. With fewer than 30 members of chambers, everything just falls into place and it works. For example, of all the things we have spoken about so far; culture is dead easy. It exists because we are small enough. If you have someone who is behaving badly in a large set, my experience was that the general view was, ‘It is someone else’s problem. Someone else will deal with that.’ In a smaller set, however, everyone knows, ‘If we do not do something about it now, it is going to become a problem’, so someone will tap them on the shoulder and say, ‘Don’t do that.’
The difficulty with a large set of chambers is you then do rely very heavily on top-down mentoring, which I am afraid is sadly lacking at the Bar. You see it all over the place; for example, how can you possibly have a set of chambers that is folding where the first person to leave is the head of chambers? I think that that is a disgrace. They should be the last person to leave the set and they should do what Tony Williams did with Andersen Legal all those years ago, when his organisation was disbanded, and he said, ‘I am not leaving here until every single person has found another place to go.’ That is what is missing.
When you come to committees, I cannot believe that a chambers now does not have a single committee. We have a management committee but that pretty much covers everything that we need to do. If you then have a clerks’ room that is functioning properly, all the other areas will feed into or out of that.
Participant 4: The chief executive at one commercial set introduced a buy-in scheme. They were having difficulties over trying to convince members of chambers that having some sort of concept of business development might be useful to move ahead, so they created what they called – which was quite brave – “route-to-market” groups, which I thought would have scared them to death. Though that means, however, the management were able to say, ‘You come up with your ideas and we will then convince the management committee to throw some money at your group to spend on it and to develop your individual practices within an area of practice.’ That got the buy-in without giving them any real executive authority. You separated the buy-in from the management of it, and I think that was a good step as a hybrid.
Participant 9: The fact is, everybody is an individual, so you do not have a corporate structure where everybody buys in, because barristers, by and large, are very selfish people and do not want to become members of a committee if they are doing extremely well. The best set-up is having one of the busiest members of chambers, who is a benign dictator and leads from the front. Then, what he or she says goes. You also need a good clerk to make sure that everybody is happy and that the door is always open for the head of chambers to talk to anybody who has a problem.
It is inevitable, however, that today you are going to have lots of committees. I cannot see how a chambers can run without committees. It does not have to be controversial. You need a pupillage committee, a finance committee and a marketing committee, with people who are concentrating just on those areas, generally for the benefit of chambers. The majority of members of chambers who are busy are very selfish. They do not want to be part of that. All they are interested in is that their practice is running very well and that they can talk to their client and with the head of chambers if something goes wrong.
Having these chambers meetings once a month is nonsense. Getting two lawyers in a room is bad enough, let alone 100 or 50. It is a complete nightmare. You need people to lead from the front. The clerk and the head of chambers should do that. What you need to have is people following you. You do not need to push them. It is people who change, who push and who tell other barristers how to run their practice who create the difficulties, and that is when some chambers come into difficulties. A number of the chambers that have folded have to do with management as opposed to whether they were getting good-quality work. It boils down to the head of chambers not being a good, proactive head of chambers leading from the front.
Participant 10: Technology is helping with this. We have only one committee, a pupillage committee. That works well for us and means that as management and staff we can really get on with getting things done. I think that participant 2 is right, however, that it is really important that everyone has a voice. We use our intranet, as well as other IT such as video-conferencing, in order to maintain a dialogue within chambers. Of course, I would never put digital communication over a face-to-face conversation, but when you are in a position, as I am sure most of us are, where your barristers are all around the country all the time, it is incredibly helpful to have the intranet as an additional forum for discussion, whether about legal or business or even social points. I think that’s one way in which you can ensure that people feel acknowledged, recognised and heard, without a committee structure and even if often they are literally miles away.
Participant 4: I was really interested in the idea of the mentoring and pastoral side – that sort of role whereby the head of chambers is not just so much as a manager but a sort of chairman of the board, being not only a check and a balance on us and a relief valve of sorts, but also being someone who does have a pastoral role in amongst the rest of the body.
Participant 13: I can help you a little on that with some of the work that I have been doing with the Wellbeing at the Bar working group. You may remember that, in the first survey that was done, which drove the whole of the process after that, one of the things that came out as a very strong message was that there was no strong leadership at the Bar as a whole in those sorts of issues. It was one of the things that the Wellbeing at the Bar group at the time had identified as something that was seriously lacking at the Bar and which existed in other professions and other areas. It really helped its members.
One of the things that is being looked at as part of the implementation of that now is to make sure there is a proper mentoring and leadership ability at the Bar. In fact, it is one of the things that, as you may have spotted on one of my missives, I also want to do it for the Institute of Barristers’ Clerks (IBC) because we have really good, experienced senior clerks who are able to provide that sort of service for others. It is has not existed before and it is going to take some time to put it all together and for people to understand why it is important and to do it. When I put a message out saying that is what I wanted to do, I had a number of senior clerks who dropped me a line saying, ‘If I thought I could do something to take on that sort of role with someone more junior, I would be delighted to do it’, so the willingness is there.
Participant 11: All members of staff at my set have a mentor, and all barristers under seven years’ call are given a mentor. Every new pupil is given a professional mentor within chambers, and those over seven years’ call are given an option whereby we will discuss the appropriate person who may be able to assist them.
Participant 1: We have it up to five years’ call. We have given mentors to new people coming in, in order to help them integrate into chambers. We must have all sat with members of our chambers dealing with a number of their personal problems. Sometimes, the head of chambers can be the right person, but I think there are other members who you might lean on, who have the ear of certain groups or just have a certain way with them. I suppose that comes down to the atmosphere in chambers in terms of how supportive it is.
Participant 8: Can I just echo one really important thing for clerks in that particular role? Depending on what your issue is, on one reading of the Bar Handbook there are occasions where a barrister may have another barrister come to see them about a difficulty, the result of which ought to be that the person with the issue needs to self-report to the Bar Standards Board (BSB), which is an absolutely crazy situation. I think that that is why clerks have a really important role here, because we can have that conversation and we can deal with it.
Hayley Eustace: Where does everyone stand on barrister appraisals/practice reviews? I mention it to some chambers and they do not feel comfortable introducing the idea.
Participant 5: It is like painting the Forth Bridge. Team leaders do it all the time. I and my joint do it every ten months to a year on a set agenda. It is a must.
Participant 4: We tried to get the buy-in to ‘there might be some value in this’ rather than just trying to reduce the person on the other side to tears and then carrying on. Within the barrister practice area, we introduced bringing along a peer or one of the barrister leaders of that group to come and not take over the leadership of that meeting but contribute to it. That was part of the whole idea of professional mentoring.
Hayley Eustace: It was optional, then, for that individual to bring someone?
Participant 3: It was, but they were very much encouraged to do it. It is entirely different at the commercial Bar and there are some things that we can learn from that sort of practice, as opposed to the concern of, ‘You mean you told him or her who my contacts are?’
Participant 7: That also goes for fees. There are some chambers where everyone knows what everyone earns; in most chambers, however, it is a secret.
Participant 3: Everyone knew what everyone earnt where I was before.
Participant 7: How, then, do you have a practice meeting or appraisal – or whatever you want to call it – without discussing fee levels and aspirations? It would be very difficult to do in front of somebody else.
Participant 3: It is up to the person.
Participant 12: We did not see it as much of an issue. Any issues that we have had come out of it have been easily solved by explaining that we are here for the individual’s practice. Certain areas are going to earn certain dividends, and you just manage the situation. I think the Bar is getting, on the whole, a lot better at buying into things and getting behind people to market or business-develop and to understand that they are part of a brand. Coming up through pupillage now, you get people applying for pupillage because of the brand, not necessarily because of anything else, because they know that it is going to benefit them in the long run. If you have that at the start, you are going to have people behind you helping. I think that that has changed. I might be wrong or naïve but I feel that that has happened over the last five to ten years.
Participant 1: It is about taking responsibility. Picking up on the point that you cannot get enough members interested in the running of chambers, everybody has a responsibility to the brand. In fact, to me that has always been the essence of practice review meetings. I was doing them years ago. It was to stop members moaning that they were missing out on opportunities. It is all well and good saying, ‘Chambers does not do anything for me’ and, as chambers’ problem, that is the clerks’ problem. When barristers are doing well, it is all down to them. If a practice is struggling, the clerking team or the business-development team is there to help and support, but the member of chambers has to take and accept responsibility for their practice and performance, why they do not have clients and why they may be lagging behind their peers. I think what we do is provide the same opportunities for all members, and all members the same platform to work from. Then it is down to how the market reacts to individual members and whether they decide to instruct them.
Participant 2: The disclosure of income can lead to problems in terms of barristers feeling that they are not getting the same opportunities as others; some people are not very critical of themselves and will want to challenge individuals’ earnings: ‘Why is this person earning more than me? Why am I not earning the same? Is it a gender issue or a favouritism issue?’ The clients of good barristers come back and instruct them time and time again. When I say good, I mean good in every sense e.g. legally and commercially.
Participant 1: Our members are all being monitored for fair allocation of work. We have an annual audit and we have never had an issue with unfair work allocation.
Participant 4: The Bar does not really address fair allocation of work. In lots of other professional services companies, you would be having that conversation and saying, ‘I will tell you exactly why you do not have the same level of billings as this person does: because you are not doing that, you are not doing this and you are not doing the other.’ As a generalisation, we tend to back away from that because we do not necessarily need to have that harsh conversation with the individuals. That then allows them to either be ignorant of it or to blame us for the act that they have not capitalised on the opportunities that they have been given. That is an observation from working in professional services companies and coming to the amorphous blob of self-employment at the Bar. That, I think, is a real challenge for us trying to develop a ‘business’ that can support the staff who are employees and keep the members collectively together.
Participant 9: I am surprised at that because, at my previous chambers, where I did practice reviews, honesty was just the way forward. I remember one barrister saying to me, ‘Why am I not getting the work?’ I spoke to his best client, who said, ‘You are a go-to chambers but he is not a go-to barrister’, so I had to tell him. He was shocked. The fact of the matter is that it is the only way forward in chambers.
Participant 8: It is not an easy conversation. Once you leave that room, that person is still your principal, and that is part of the issue. That is why I agree that having the evidence and the analysis to be able to say, ‘These are the opportunities that you have not capitalised on’, is a much easier conversation to have, because you are talking about hard facts and they understand that. The tricky one is when they just do not get it. How do you describe that to someone?
Participant 2: If you are coming into the profession from outside and you are not used to this, you say, ‘I have this new job as the chief executive of a set of barristers’ chambers, and I can immediately see where things are going wrong’. If you immediately sit down and say, ‘The problem is with you’, then the relationship is going to fail. It takes trust and time to be able to provide constructive criticism. A lot of people sitting around the table have been in their jobs for quite a long time. Even if they go to new chambers, it takes a while to build up that trust. If you do not have the trust, having those conversations is difficult.
Participant 4: That is why I do not have those conversations and never have. That has been what the senior clerks have had, because they are, essentially, the professional advisers. This is, again, where we talk about the difference of our roles. If anything, I am a collective business adviser, not an individual practice adviser. My comments were based on my observations of what I have seen other people do. I think it is greatly complicated nowadays by the scrutiny of such things created by the fair allocation of work that have been mentioned, because there are clerks and practice managers who are afraid of making certain comments to people because they will be held to account for it – inappropriately.
Participant 8: That comes back to strong support in chambers. You need strong support from the senior clerk and the head of chambers because, if you are going to have that conversation with someone, you need to know that you are going to be backed up. I suspect one of the reasons why people feel exposed when they are having those sorts of conversations is because they feel, ‘I cannot be certain that, if this member of chambers says something now, I am going to get the proper support that I need.’
Participant 11: Going back to being honest, if you do not say what you think right now, it could come back and haunt you three years later: ‘Why did you not tell me that before I put this application form in? I would have gone to Hong Kong if you had told me that three years ago.’ The flip side is making promises that are just not achievable. I have seen that happen many times where, ‘Yes, you will have that ten-week arbitration in Hong Kong.’ 12 months later, ‘Where is this ten-week arbitration you promised me?’ Honesty is the best way forward.
Hayley Eustace: I am going to move on to another topic. Do you think we can ever get to where we want to be in terms of diversity at the Bar?
Participant 11:I think we will but it is going to take more time than what some people think is appropriate. We spend a lot of time on this at my chambers, as diversity and equality are some of our core values. People apply to us based on those. We spend hours and hours, and we employ a project manager purely to deal with equality and diversity issues. Colleagues and I spent half a day last week doing an equal-pay audit, which we do every year for the hourly rates. We are not required to do that, but we do it because some members of chambers earn more than others, which we can explain, because of the type of practice areas they have. Are they working full-time or have they gone off for three months to write a book? We go over all of this once a year, just to do the audit. We report to the management committee and say, ‘This is what we spotted and these are the reasons why. There is not a problem.’ So far, there has not been a problem. There have been one or two members who have complained, ‘Why am I not doing more commercial work? Why am I not doing more media work? Why I am doing more Legal Aid work and others are getting paid by newspapers doing media work?’ We have that for that reason.
Also, we have our equality and diversity officers (EDOs), like every chambers should have. We have a training budget for staff as well as members. As you already know, members cannot be involved in recruitment until they have had appropriate training. I do not know how observed that is at the Bar or how people get found out if they are not observing that rule. We have our return-to-work meetings for staff and for members. We spend hours on this. It is, however, not one person. Apart from the person employed to make sure we are doing our job, literally all members of staff are involved in this, as well as the management committee and its complete buy-in. When you are talking about equality issues at a management meeting or an AGM, you do look around and see some eyes rolling – ‘Why are we spending so much money and staff time on this? We should be out there getting the work.’ It does happen but it is all part of the culture, the collegiate spirit, the buy-in of members and the participation. It is all part of that, which, together, makes chambers stronger.
Hayley Eustace: Do you think blind recruitment works?
Participant 11: No.
Hayley Eustace: Are there any other views on that – blanking out parts of the CVs of members and staff?
Participant 1: We have done blind recruitment with clerks, but you know who everyone is.
Participant 11: We take out the age, gender and name. We do not take out universities – not yet. It would not surprise me if that were the next stage.
We offer a points-based system on the recruitment of pupils. We had to employ someone to manage it. Everyone has time at some point or another, but we had to employ somebody to handle not just equality but other special projects that come up throughout the year. That is what chambers wanted to do. The EDO and several members said, ‘We want more monitoring.’
Participant 8 There is no doubt that the Bar has come on leaps and bounds in that, and it is the same in so many other areas. Once we get over that initial fear where clerks think, ‘Someone is trying to trip me up. Someone is going to try to find I have done something wrong’, we realise that it is not that at all, but that what we are trying to do is just to make it easier and to make sure that we are attracting all of the best people, not just some of the best people, then it works.
Participant 11: I was at a Bar Council seminar a couple of years ago and we were talking about career breaks, managing career breaks and people returning to work after a career break. One of the things I mentioned was the return-to-work meetings for someone who has been away on maternity leave, who was a popular member of chambers and who earned £500,000 a year. We visited their home to have their return-to-work meeting, which meant an extra two to three hours out of chambers. The clerk, who was one of the delegates, said, ‘I am sorry but we have no time to do that.’ I said, ‘If you had a solicitor client who was offering you £500,000 worth of work a year and wanted to go out for a three-to-four-hour lunch, would you go’, and they said, ‘Yes, absolutely. That is work coming into chambers.’ I said, ‘What will happen if the £500,000 barrister thought “I am being treated poorly by my clerks on my return to work so I am going elsewhere”?’ That is £500,000 walking out of chambers. It is the same thing. That is what I think but others may disagree.
Participant 10: All sorts of sets are doing all sorts of things in very different ways to promote equality and diversity and we have all made a lot of progress. However, there are still surprises. For example, the Bar Council has just introduced a career break mentoring scheme; it is an excellent initiative and it is available to parents and carers of both genders, but it is called “Maternity Mentoring”. Of course everybody now refers to ‘parental leave’ and, in promoting the notion that taking leave to look after children is primarily a women’s role and responsibility, they are undermining the aims of their own scheme. That is unfortunate and very surprising given the advances that have been made. So I think we all still need to be vigilant and active on this point.
Participant 11: Has anyone in their sets given any shared parental leave to a male clerk on full pay? Have you looked at that in your policies for when that happens? I have mentioned it a few times to clerks. It is going to happen more and more often now.
Participant 3: Bringing issues like diversity to the attention of the Bar – an organisation that perhaps has not paid a great deal of attention to it, as lots of other organisations have not – is really important. You can see the achievements across the Bar but you can also become too zealous. It is just one of those issues among all of the issues that we really would like to have some other improvement in. If we could devote as much time as we do to diversity to getting barristers to respond to emails, it would be enormous leap forward in the right direction. That is a business-critical issue that relates to client relationships.
Anything that we can do that will bring the profession into a better light has to be worthwhile. We have a long way to go with diversity but, while we do not need to be critical of it, nor do we need to be slaves to it; for example, this idea that one should not ask which university someone went to on an application form is a real moot point as to whether a first from one university is better than a first from another. There are lots of studies into that which suggest that it probably is, so the BSB handbook is wrong.
Hayley Eustace: There is a fine line between raising awareness and just creating a lot of negativity. The report that came out recently from the BSB on women in law is interesting in that it describes the levels of harassment and discrimination that women at the Bar are faced with. At the same time, however, it is putting that out there, and people who are thinking about coming to the Bar may be put off.
Participant 13: There are two important things about that. The first is that there were many good examples of practice and how things operated in chambers, which, inevitably, the report did not focus on. There were many good reports. The other thing is that a lot of the feedback that was given in that report was historical and related to women’s experience at the Bar many years ago. In that respect, it was unhelpful because that was not properly explained that in the materials that were reported. In fact, those reporting issues were a relatively small proportion. That is not to excuse it all but I think you have to look at it in the round. Again, anything that highlights it as something that we need to be aware of and to be able to do something about is a good thing.
Participant 11: A lot of the City firms always seem to be one step ahead in terms of equality, social access, Lawyers in Schools and Stonewall. They are all doing this because they want to be seen as good employers and good recruiters. They want to employ the best. The set I am at was built on core values, which is why there has been good recruitment since we established – just one or two leaving. However, it is all linked. It is not just about the work that you offer, the contacts that you have, the investment that you put into marketing or the staff; it is all linked to other issues, one of which is diversity.
Participant 2: It is quite a serious issue. About 18 months ago, I was invited to a seminar on recruitment at the Bar, which was really well attended by about 250 students. It went on for about an hour, and the first two questions were ‘How do I apply?’ and ‘What do I do?’ I have to say that, after that, 50-60% of the questions were equality/diversity-based, asking for statistics from the barristers. Nobody turned round and asked, ‘Who do I have to kill to get tenancy?’ or ‘How hard do I have to work?’ – questions that you would have thought were really important for students to find out. They were not asked. I was really surprised that nobody concentrated on what they had to do to get into chambers.
Participant 11: I think there is a set of chambers out there waiting for the BSB to make an example of. I know that some sets of chambers do not have the resource, the money or the staff, and they look at equality and diversity as being something they can just leave aside. It is important for them to get more work and more members in. I do think, however, that there will be a stage where the BSB will make an example of a head of chambers, of a set of chambers or of a clerk.
Hayley Eustace: Moving on, direct access is something that I am keen to hear views on. Certainly in the last five years, there has been a change in mentality but there is still a lot of nervousness at the Bar about going directly to clients and cutting out the solicitor.
Participant 5: With direct access, there is that nervousness. For our chambers, in the commercial world, it would be a direct approach to BP or Shell, for example. At the end of the day, 98% of our instructions come from law firms, so we are very careful in terms of how we do that.
Participant 2: I agree with the point and I absolutely understand where you are coming from too. I look at a company like BP or Shell, which have several hundred in-house lawyers. They have in effect a mid-tier law firm within a company, so it is difficult in that situation when you get their lawyers ringing up and saying, ‘We want to engage with you. We would like to instruct you.’ – Is any chambers really going to say no?
Participant 5: That is not a problem if they approach us. What I do not like doing is knocking on the door. We had a close relationship with an in-house lawyers’ group in the north-west of England. We put on two or three annual seminars, which I did jointly with another commercial set. We called it ‘Forget the Pink Tape’. It was all about, ‘Come to us. Forget all the trimmings.’ We had a room full of people from the Co-op and all sorts of places, and they were good events, but nothing came of it.
Participant 11: If you were targeting in-house lawyers and one of your main clients was Clifford Chance, who had been working for HSBC for the last 20 years and had known you for 20 years, they would say, ‘Hold on, you are trying to cut me out. You are going direct to my client.’
Participant 5: That is the sensitivity.
Hayley Eustace: But there is now quite a lot of cross-referral.
Participant 5: You have situations where a brave law firm will say to a big corporate, ‘Start with the Bar because what you need is an opinion’, because they know that, at the end of the day, if it becomes litigious, they can go back to the law firm. That does happen.
Participant 7: So many of these people have been increasing their in-house capacity. On that basis, there are a lot of solicitors and some ex-barristers going in who know exactly what the value of the Bar is. They are contacting the Bar directly, and that is terrific. I agree that you would not necessarily go and knock on their door too obviously, but we get more and more work from in-house lawyers directly. We also get direct access not through in-house legal but from people like financial advisers or architects, who are sophisticated and who know exactly what the issue is. They do not need a solicitor to translate it to a barrister. They make fabulous clients and they pay you upfront. I don’t know why people don’t do more of it.
Participant 5: There are those like accountants who license access. With our indirect tax practice, I have been courting accountants for years, but that is not taking work away from law firms; it is just another source of work. I am really careful, however, because it gets back.
Participant 2: We are seeing it on the international side to a tiny degree, where you have a corporate in Kazakhstan, for example, that approaches because you they have heard of you, and they do not have an in-house legal team. That is an interesting angle, where you then have to decide, first of all, ‘Do I want the hassle of dealing with this client and all the silly questions that they are going to ask me?’ or whether you are going to say, ‘You really should be speaking to your solicitor, who will be quite grateful for you referring these potential instructions to them.’ There are opportunities, but I certainly am not seeing them on an enormous scale at the moment. I would be interested if people here are seeing any.
Participant 5: Certainly, we get some overseas work, which we put in the direction of various law firms, but it is not big in any sense. At least that is my experience.
Participant 11: There are sets of chambers out there – I do not know if they are around this table – that deal with lay clients that are emotionally involved in a case. It is their life or their home or their job. That is where it becomes very difficult for the barrister who is not there every hour to hold their hand, take that phone call and be out of court for two days. That said, there are lots of sets of chambers out there that are making a lot of money and good income from that work.
Participant 1: One of the other things that is going to be out there soon is panels of chambers. We see it already with local authorities, but I am talking about more commercial institutions; for example, banks.
Participant 11: Barclays – every year or two years.
Participant 1: Where does that place you if you apply to go on the panel? Do their in-house legal teams start coming to you direct with work that they might ordinarily have channelled through their panel firms? Does that put you in a sensitive position?
Participant 10: We are having exactly that with a number of corporate and public sector organisations and it does put us in a very difficult position.
Participant 1: You would have a go, however – why would you not?
Participant 10: One in four solicitors are now in-house, so you cannot ignore a quarter of the market, although it is very tricky.
Participant 4: That is where we come back to the first conversation: that is the corporate treating us as corporate rather than a collection of individuals.
Hayley Eustace: Do panels work for the Bar?
Participant 11: There are conflicts.
Participant 2: I think it is dangerous having chambers panels. I have no problem having barristers who are individually panelled to do work and then selected. It does not mean that other barristers are conflicted as a result of the limited panel of individuals.
Hayley Eustace: We touched on international work; many of you here travel overseas with your chambers and some of your sets have offices abroad. I am keen to hear views on where the hotspots are and how much there is out there for the Bar.
Participant 2: Singapore is an interesting one to start with. It is seen as a hub for Asia. It is probably over-lawyered, in reality. There is a reasonable amount of work but it is not saturated with work, so I think people have to tread carefully in terms of how they invest into developing an overseas practice. This is where you have challenges around the individual versus the corporate. Investing in international development can be seen as for the benefit of those particular few members who have a desire to work on international matters. An overseas chambers brings a lot of challenges and it is not all easy. What happens about the distribution of work? Clerks’ positions could be difficult in this situation. There are members on the ground and your job as a clerk is to advise solicitors on the most appropriate barrister, who may well not be the barrister on the ground but the one back in London or somewhere else. Work in Asia is good, as is work in the Middle East. The Bar is doing well and it is good that a number of chambers are investing in international development. The more that the Bar raises its profile then the more it will be seen and accepted. It is about making the cake bigger not about keeping your small slice intact.
Hayley Eustace: How important is it to have an office on the ground?
Participant 2: It is not important to all clients. Some solicitors believe that it demonstrates a good level of commitment to the region. We have lots of people making regular visits. You cannot have an office and not have a regular programme of barristers visiting, doing the work or doing seminars and a whole range of other BD initiatives. It is a big investment for chambers and the individuals. It comes back to whether chambers really want to go down the route of investing in an overseas office. It is not right for all chambers.
There are chambers in the UK that do a lot of work in the Caribbean. We were talking on the way here about how difficult it is to really properly service that type of work. It is not like you can just jump on a plane and go from island to island. Trying to get around is difficult, it costs a lot of money and takes a lot of time, and you have to do it for a long period of time. You cannot just go once. The IBA annual conference is a great example. People go to the IBA and think they will get loads of work, but no, you have to keep attending to build up relationships and trust. There is a lot of excitement about international work, which is good. London is a great place and attracts a lot of international work, but international work is not for everybody. You have to be robust and to have travelled extensively – it isn’t easy.
Participant 5: It’s not. We opened in Singapore as the market was opening up. It was about showing commitment and getting behind them. It was not about us taking lots of money out of the place but about us working with them and giving them confidence. Again, it is difficult, but I completely agree with what participant 2 says. There is not a lot of work out there. There are some big law firms with some excellent people who are well able to do it themselves. The Singapore International Commercial Court is an opportunity but that is a slow-burner. It is not all about Singapore. As we keep saying, those out there talk about the region, which goes up to Hong Kong and Korea and out to India and maybe further to Dubai or even to Australia. There are opportunities but you have to be plumbed into it. It has to do with the brand as well.
Participant 9: Over the last few years, the Bar Council seems to have been holding out international work as some sort of Holy Grail: ‘If your practice in England and Wales is folding, do not worry – we have another conference that will tell you how you can develop yourself internationally by going to the IBA. I just do not think that the barristers’ union convenor is necessarily doing the Bar a great favour by peddling that message, because it is really difficult to craft some work out of a relatively small market.
Participant 5: I have talked to the Bar Council – and I am sure others have – but I do not think the way they go about it is necessarily the right way. I have talked to them about ways that might be better.
Hayley Eustace: What are the alternatives?
Participant 5: It is the way in which the Bar Council goes about it. They engage with the wrong people. Some of the Commercial Bar Association (COMBAR) initiatives are better than the Bar Council initiatives. The trouble is that the Bar is big and covers so many different areas; it does not suit everybody. The specialist Bar associations such the Chancery Bar Association and COMBAR do things, but the Bar as a whole is quite a difficult thing to market around the world.
Participant 2: The Bar Council tries to facilitate opportunities. In a sense, they are trying to facilitate an opportunity for you to be able to develop your practice as part of one of their missions. They like to spend time with local independent advocates or with the judiciary, but equally with some of the independent law firms. I have seen it over a number of years and, while we can all improve in different ways, they have done a lot of good work. The specialist Bar associations complement the Bar Council once the initial contact has been created. It is important that leading members of the Bar join these delegations so as to present a strong message.
Participant 5: It is like finding members of chambers to go onto chambers’ committees – those members who are prepared to put their backs into it.
Participant 2: The trouble is that, sometimes, you can end up having people on committees who are the last people you want on committees.
Participant 9: The problem with the Bar Council is that they say, ‘Let’s have an initiative in Singapore’, so they arrange something, but there are other factions such as COMBAR, the Chancery Bar or the Construction Bar and, all of a sudden, there are four different conferences in Singapore and there is no link-up. I know the Bar Council has been trying to liaise but people seem to just forge ahead. The fact of the matter is that there is a huge amount of work in Singapore for the Bar. What we offer in skills is very much respected overseas, and perhaps even more so than England. I think the Bar has done very well because chambers do cooperate and there is a critical mass of chambers now in Singapore. But chambers need to cooperate more.
If you are in chambers and you don’t do international arbitration, it is going to be extremely difficult. If you don’t have the reputation and you don’t have the work from overseas, you simply cannot expand. It is like saying, ‘I do personal injury and I would like to do shipping or banking.’ It takes time and investment. My personal view is that there should be a joint chambers event in Singapore. All the commercial chambers should get together. They should be acting as one, because they would get more work. What I can tell you is that, after several years and other chambers coming in, work for the Bar in Singapore has increased substantially.
Awareness has also increased: Sometimes, the use of a silk is client-driven, sometimes, the client says, ‘I want one of those QCs’. Or because there is a QC for one party, it means that the client has to think about it, or the solicitor has to tell his client that there is a QC on the other side, and the client may say, ‘I want one of those’. The profile of the Bar in the Far East just used to be Hong Kong and a tiny bit in Singapore, but there is now a real awareness in the region.
All the chambers need to be commended for all the time and effort that they have put in to promoting the Bar as one. It goes to show that perhaps this is a blueprint going forward for various chambers to cooperate. It would be interesting to see if that happens, but I personally know that, when more chambers went to Singapore, the amount of work we got increased. There is no question about that. Every single case that came to chambers, I knew about, and there was no doubt that having somebody on the ground showed a little more commitment and helped enormously. If you have somebody on the ground, it helps with locals. That is my personal view.
Participant 11: What do you think about the Generation Y group? There are these young, super-intelligent barristers looking at these barristers who have been developing equity for 20-25 years. They are coming to chambers and being paid more money than ever before during their pupillage years. They come into these great sets of chambers that are now Magic Circle, 60-100-plus, and they see this great work and these big trials and think, ‘I want that from day one’. I don’t know how you feel around the table, but do you find that the young generation over the last four or five years want it now, they want it quick and they want it fast?
Participant 11: A pupil becomes a member and suddenly says, ‘I am self-employed. I have one vote. I am just going to do that type of work. I am not going to do mags or road traffic accidents. This is what I am going to do.’
Participant 5: They know that they cannot come in and make those demands. They will not last very long if they do.
Participant 7: We put ours on two years’ probation. They are offered tenancy but if there are serious performance issues then we can review the position. We have only ever had a conversation with two of them in my 25 years, but it is there and they know it is there and they remember it.
Participant 5: How long has that been around for?
Participant 7: 20 years.
Participant 11: We tried to bring through the one-year probation period two years ago but the members did not want it.
Participant 7: Everybody forgets about it but you occasionally have an issue with somebody saying, ‘I do not want to go and do road traffic accident cases.’ You can say, ‘Sorry, but that is what you signed up to. You have to do the unpopular, unfashionable work because we have to keep that work for the next round of pupils and junior tenants. You are not going to blow it for us.’
Participant 2: I think that the probation idea is brilliant, save that, in my experience, if you have someone who is not performing, it probably only really comes to light after a few years. Let’s say you have someone who is being charged at a very low hourly rate. They are attractive because you are saying to someone, ‘I can put an extra member on your team and it is not really going to cost you very much.’ That can last for a good three or four years and it is only after this that any performance issues come to light.
Participant 5: I talked to another clerk 20 years ago about probationary tenancies, and we talked about five years. In a law firm, you do not get your partnership until you have done your time. We just thought this was pushing it too far: it would never get off the ground and we would not get any applicants.
Participant 7: You get a very good idea after two years.
Participant 4: Our set was looking at the whole concept of third-six pupillages and tenancies for life. We just said, ‘If you get a pupillage at chambers and pass that pupillage, you then move on to an 18-month, fixed-term tenancy. If you get selected for pupillage, you have pretty much a guarantee, if you tick all the boxes, then you have two and a half years where you are going to be guaranteed to have a certain amount of income. After two and a half years as a trainee and a fixed-term tenant, we will then decide on your tenancy for the rest of your life, on the basis that not only you jump the hurdle but there is also a recruitment need for you in that area of practice that chambers wants. You could be a star but, if the area that you are in is equine law and we do not want equine law, then you do not have a job.’ The criticism from lots of barristers was that no one would want to sign up on that basis. The response from potential and existing pupils was, ‘I would bite your arm off for that opportunity.’ We should all be looking at it.
Hayley Eustace: Okay, final question, what do you think the future holds for the Bar?
Participant 1: I think that we are going to see more sets merge. We are probably going to see some more sets fold.
Hayley Eustace: There is a lot more movement now. People are not afraid to jump ship anymore.
Participant 2: Is it not going to full-circle? Are we not going to see large sets grow and then fragment into smaller sets?
Hayley Eustace: You rarely come across common law chambers in London nowadays.
Participant 1: They [common law chambers] are vulnerable. There are other sets that you think are still strong brands that are vulnerable too, in my opinion.
Participant 12: That comes down the cultural thing that we talked about.
Participant 1: Every chambers has its own way of funding itself. If members are not that busy, if premises, staff and equipment start becoming more expensive, if regulatory requirements are increasing, this will put a strain on the viability of those sets. What happens when key members leave?
Participant 10: I think an interesting point for all of us is going to be how we continue to develop and progress in line with increasing competition and increasing expectations of clients, while still retaining some of our cachet and character. We absolutely have to advance and be cutting-edge, both in the practice and the business of law, and especially service delivery, but we do not want to just turn into solicitors’ firms. I don’t think solicitors want that and I don’t think we want that. But it is quite a difficult line to steer.
Participant 4: I also do not think that there are enough forums where chief executives, chambers directors and senior clerks get together. It is increasing but it is certainly nothing like what it needs to be in order to have an open exchange of all our views. We do very much appreciate the roles, the information and the experience that everyone brings together. If you can call 10-15 years historical, there have been historical divides, but we only work better by talking in forums like this.
Participant 2: The future is rosy. The only negative is Brexit.
Hayley Eustace: Thank you very much, everyone, for giving up your time today.