All change

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Catherine Baksi takes a look at how chambers are adapting to a pressured and competitive environment

Despite the myriad of pressures on the Bar, the number of barristers and chambers from which they practise has grown in recent years. 


Figures from the Bar Standards Board (BSB) show that there were 379 sets in 2005, compared with 409 in 2015. Yet behind the numbers, sands are shifting.

In an effort to reduce costs some sets have merged, some have started operating outside the formal chambers structure, and the advent of BSB-regulated alternative business structures (ABS), anticipated later this year, could spur others to greater innovation.

Closing time

Tony Williams, principal at Jomati Consultants, outlines trends that have contributed to the pressure on chambers, pointing to the reduction in fees, scope of publicly funded work and introduction of employment tribunal fees.

One of the first and biggest casualties of the legal aid cuts was the high-profile human rights and civil liberties chambers Tooks, founded by Michael Mansfield QC in 1984.

Dependent on public funding for 90% of its work, its members decided to dissolve the set in December 2013. It was resurrected in the guise of Mansfield Chambers, using a ‘virtual’ low cost model operating out of serviced office space (more on this later).

The following spring saw the demise of family, immigration and human rights set Renaissance Chambers, which began life as Gray’s Inn Chambers in 1989. It too blamed its demise on the legal aid cuts, compounded by the departure of its immigration team, which decamped to the newly formed Mansfield Chambers.

Sadly, despite the hopes of some of its members, there was no rebirth for Renaissance.

But it is not only legal aid sets that have opted to shut up shop. The Chancery and commercial Bar witnessed the shock collapse of 11 Stone Buildings last year, after more than 40 years. It is understood that the closure was precipitated by a number of departures. The remaining barristers dispersed to new homes – the majority joining Wilberforce and Radcliffe chambers.

When two become one

Mergers at the commercial Bar are relatively uncommon, although two of the leading sets – Maitland and Wilberforce – are the product of mergers. This year has seen two new pairings.

In August, national set St Philips Chambers combined with specialist shipping and international commercial set Stone Chambers to form St Philips Stone Chambers, one of the largest multi-disciplinary sets in the country with 189 full-time barristers.

This followed the coming together in April of Lincoln’s Inn sets Thirteen Old Square and 3 Stone Buildings to create Three Stone, headed by John McDonnell QC, who founded Thirteen Old Square 12 years ago.

‘We were happy and self-sufficient and not looking for a merger, but they [3 Stone Buildings] approached us and asked if we’d take them on,’ says McDonnell.

The two sets, he notes, had been ‘friends’ through the clerks and McDonnell had often led Geoffrey Vos when he was at 3 Stone Buildings before he took Silk.

Andrew Cosedge, acting head of 3 Stone Buildings immediately prior to the merger, explains that the merger was triggered by the departure of four members of chambers, which precipitated a ‘crisis of confidence in the continued viability of chambers’ even though it had just enjoyed one of its most successful financial years.

A ‘snowball effect,’ says Cosedge, led to the departure of around a dozen tenants. ‘After that leakage, we had to stem the flow, so we approached Thirteen Old Square.’

Chambers’ splits can come about due to personality clashes, though for the most part, are driven by individuals taking commercial decisions about their practices. ‘In my experience of more than 40 years at the chancery Bar, mergers are not forced, but come about due to people moving,’ says McDonnell.

‘There is a trend for chambers to get bigger in the belief that they will attract more work from City solicitors whose firms are themselves getting bigger,’ he says, adding that he finds it ‘nonsense’.

Though he can see the commercial sense for City firms to increase in size, allowing them to have more specialists and field larger teams, McDonnell says the same logic does not apply to the Bar. ‘What matters to solicitors is the quality of the individual barrister who they instruct, not the size of the chambers.’

Regulatory guidance

Despite the pressures, Julia Witting, supervision manager at the BSB, notes that the few closures or mergers have not been ‘crisis decisions’.

Chambers, she says, need to be able to adapt, innovate and be flexible. ‘They must be prepared with a constitution that deals with changes, and that is primarily geared around protecting the public interest.’ The constitutional arrangements of chambers are therefore very important. This is reinforced in advice from the Bar Council. and should make clear what happens in the event of chambers dissolving on a solvent or insolvent basis and whether members will be required to contribute, as well as how long former members may remain liable.

The BSB provides guidance for chambers and individuals on the regulatory considerations involved in closing down (search for ‘chambers closure guidance’ on the BSB site).

Witting observes that barristers at a set that is closing down should seek to ensure that they comply with the following core duties – you must act in the best interests of each client [CD2] and you must keep the affairs of each client confidential [CD6].

She notes: ‘In order to achieve an orderly closure, members of chambers should be aware of the risks that are involved in closure and how they are being managed.

‘Failure to properly manage these risks could result in non-compliance, which could in turn result in the BSB pursuing enforcement action.’

Chief among the risks that chambers will need to mitigate are the disruption to pupillages, the loss of confidential client information, case papers and records and unresolved complaints that leave clients without redress.

Barristers should ensure that important emails (both sent and received) are not lost if chambers’ email server closes down, and that records, including those relating to public/licensed access, VAT, payments, legal aid, conditional fee agreements and money laundering certificates are retained.

After closure, chambers should place appropriate ‘signposting’ on its website, referring clients to the Barristers’ Register to enable them to find where their barrister has moved to.

Sets facing closure are also advised to inform the regulator’s supervision team for advice on orderly closure. Additional information from the Bar Council will be published later in the year.

Outside the Inns

The majority of chambers in London have traditionally rented accommodation in one of the four Inns of Court. But it seemed for a while that some sets found the lawns and libraries were not enough to keep them there.

In 2010, criminal set QEB Hollis Whiteman swapped the leafy environs of the Temple for Cannon Street as it expanded its regulatory and white-collar crime practices. Three years later 6 King’s Bench Walk decamped to the City, buying offices in College Hill.

This year, Richard Hendron, of Strand Chambers, announced plans to launch Defcato Legal, a chambers based in Soho.

Defending the appeal of the Inns, Patrick Maddams, Inner Temple’s sub-treasurer, says: ‘The Inner Temple has high occupancy rate with a diverse range of practise areas and sizes of chambers including the Temple Legal Centre.’

Innovations

In response to the increasingly competitive environment several sets have adapted the way they operate, many making use of the expanded direct access scheme. To support chambers’ direct access work, the Bar Council relaunched its Direct Access Portal last year, providing a free online register where members of the public can find a barrister.

Cotswold Barristers is one set making use of the scheme. It was set up three years ago with six barristers in response to the legal aid cuts. ‘I saw the dangers and knew something needed to change,’ says chief executive, Carla Morris-Papps.

She explains that the barristers do not work full-time at the set, but are members of other chambers too.

While some are nervous about dealing directly with clients, Morris-Papps insists that for those willing to ‘put in the effort and energy’ it is a success.

‘You have to put in place the appropriate infrastructure, and have proper processes and policies, including a complaints procedure,’ she adds.

The chambers’ model, says Morris-Papps, ‘probably needs to be re-thought.’ Although Cotswold Barristers retain aspects of it, including a physical premises in Cheltenham.

‘Having a premises is important – it breeds confidence and a sense of privacy and confidentiality that you don't get from virtual sets that have conferences in hotel rooms,’ she says.

Founded by Jonathan Maskew, Shu and Daniel ShenSmith, Shensmith Barristers provides marketing, administration and clerking services to direct access barristers paid on a fixed fee basis. As with Cotswold Barristers, members belong to other sets.

The dependence that most sets have on the traditional route of work coming from solicitors, says Maskew, means they see no reason to change, and the chambers environment ensures decisions take a long time to reach, as day-to-day work trumps planning and resources to implement change are limited.

Small, niche chambers are emerging, often with a focus on private prosecutions. Quentin Hunt, a criminal barrister at London’s 2 Bedford Row, recently launched a direct access website to facilitate private prosecutions, 9 Jockeys Fields Ltd, the ABS arm of 9 Bedford Row, began a military law practice, and two barristers from 2 Dr Johnson’s Buildings have set up VII Law providing direct access for sports, entertainment and media law instructions.

The concept of the ‘virtual chambers’, in which premises and the services provided by chambers are pared back to the minimum to reduce members’ overheads, has been around for several years.

It was adopted by Mansfield Chambers, which originally rented rooms in service office space on Chancery Lane, before moving to Fox Court on Gray’s Inn Road. The low-cost model means barristers pay a much lower proportion (10%) of their fees towards the administration of chambers.

Mark McDonald, founding member of Mansfield Chambers, explains that the virtual set-up worked well for certain disciplines – crime, family and senior work in the High Court, Court of Appeal and Supreme Court.

But for junior, privately paying immigration work, where barristers required more clerking time to chase fees and greater printing and other resources to prepare cases, it did not work so well. As a consequence, the junior immigration team moved to Goldsmith Chambers.

Mansfield Chambers, says McDonald, is now ‘at the start of a different road’. ‘We are in talks with a top solicitors firm who are considering joining us and forming an ABS regulated by the BSB’ when they are permitted.

Clerksroom was one of the first ‘virtual sets’. Founded in 2001 and with its head office in Taunton, it styles itself more as a procurement company or a service business, that, as its name suggests, provides clerking services to its sole practitioner barristers who work from their homes around the country. Through Clerksroom Direct, it too provides public access barristers and has more than 1,000 on its books.

Among the change and innovation, judging from the regulator’s supervision visits, the BSB’s Witting concludes that ‘the chambers model is firmly here to stay – it works well and is cost-effective’.

Though she anticipates that the traditional model will remain popular, Witting adds: ‘Our entity and, in due course, ABS schemes will allow barristers to take advantage of different ways of working.’

Contributor Catherine Baksi, freelance journalist

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Catherine Baksi

Catherine worked as criminal and immigration barrister before becoming a journalist. Previously a reporter at the Law Gazette, she is now freelance and writes for a range of legal publications including Counsel. Catherine has also written for The Times and The Guardian and works as a court reporter for Thomson Reuters. She is the author of the website Legal Hackette’s Brief and tweets from @legalhackette.