Nevertheless, the warning, issued in Sir Bill Jeffrey’s independent review of criminal advocacy in England and Wales, was still sharp and stark. He wrote: “... simply carrying on as at present in an effort to keep intact, in radically changed conditions, every aspect of the model as it existed many years ago, does not seem to me to be a viable option.” His message to the Bar was not so much “keep calm and carry on” as it was “change, adapt and thrive”.
Adjusting the way in which the Bar does business is critical to the profession’s posterity. This appreciation spurred the Bar Standards Board (BSB) application last year to the Legal Services Board (LSB) to become a regulator of entities, which would then allow barristers to form companies, become a partnership, or set up an LLP. The LSB approved our application in November 2014. The BSB will start accepting applications for BSB-regulated entities from 5 January 2015 and will start authorising applications from April 2015. As a regulator, it is our job to do what we can to enable barristers to alter and adapt the ways in which they can structure their practice so it better meets clients’ needs.
Tailored to advocacy and litigation
Barristers have been able to set up entities under other Approved Regulators (the Solicitors Regulation Authority, for example) for almost five years. Many have done so. The BSB did not want to replicate existing systems – our view is that, as business models change, the skills and expertise associated with the Bar should be protected and preserved and standards of advocacy must be maintained. This is to the Bar’s benefit and also in the best interests of the public.
Our aim is to give those entities wanting to specialise in advocacy and litigation the option of being regulated by the BSB – under a more niche, focused regime. We will keep our regime simpler to run by restricting the types of entity we regulate. Rather than trying to regulate an entity that wishes to concentrate on, say, licensed conveyancing, we will stick to what we know we are good at. Ultimately, we hope a BSBled entity regulation regime results in giving both barristers and consumers greater choice in the marketplace – including for one-stop advocacy, litigation, and specialist legal advice services.
Seize the opportunity
From my own discussions with members of the profession, I know there is real interest – excitement even – in barrister-led, BSB-regulated entities. It is to be hoped that our entity regulation regime will play some part in opening opportunities to those practitioners for whom self-employment is not an option. Further, the possibility of a more secure practising model may help promote retention and diversity at the Bar and facilitate innovations for consumers.
Individual responsibility is the cornerstone of advocacy’s regulatory foundations. Whether such advocacy is done within an entity or by a barrister working on a self-employed basis does not matter: the advocate’s responsibility to the court and to their client is just the same.
Becoming approved as a regulator of alternative business structure (ABS) entities is also in our sights. More detailed information on our envisaged ABS regulatory regime is for another article, but this is all part of our efforts to help those who want to adopt new business models to deal with the changing market, so as to continue to meet clients’ needs and the best interests of the public.
Sir Bill Jeffrey’s review helped set out some of the new opportunities and possibilities that can open up now under the BSB-led entity regulation regime. Upon reading Sir Bill’s review – limited as it was to criminal advocacy – I was nevertheless struck by the words of another Bill – Clinton – who once said: “The price of doing the same old thing is far higher than the price of change.” Our role as the regulator is to open up these opportunities; it is up to the Bar to seize them or not.