Business or profession?

Reflecting upon the changing business practices of the profession, the resulting fragility of chambers’ structures, and the need for all chambers to ensure proper dissolution arrangements are in place

In recent months, a highly-regarded set of commercial and chancery chambers has felt it necessary to enter a voluntary dissolution. 

This is a real sign of how difficult it can be, in these troubled times, to maintain the cohesion and strength of even the most well-established sets of chambers. I know nothing of the reasons for the dissolution. It seems to me that they are a private matter between the members of those chambers and their staff. Accordingly, what I write in the rest of this article is nothing whatever to do with any particular set of chambers, but deals with the general principles involved in operating in today’s environment.

In the first place, the nomenclature of our world has changed. No longer is the self-employed Bar and its constituent chambers seen by many primarily as an ancient and honourable profession. Instead, the practice of law is viewed as a business and barristers and chambers are so described. Well, of course it is necessary to operate in an efficient way, but is this really a proper description of what we do? I don’t think it is. It ignores the many occasions upon which barristers, to their financial detriment, take a particular course of action because it is in the public interest to do so. Let’s consider the case of a very junior tenant instructed by a solicitor to defend in a rape. If, as is overwhelmingly likely, they felt it beyond their capabilities at that stage of their career, they would politely refuse to accept the brief. Even if they did not, it is likely that the head of chambers would give strong advice to the junior not to do the case. There are many other examples I could give of similar courses of action, taken because it is in the public interest to do so, despite the fact that such a course results in a financial hit to the barrister. This is quite different from a business, properly so-called, whose objectives are to maximise profit.

So it is right to say that we still, in many ways, act as a profession rather than a business. But there have been many changes to the way in which we operate. The Bar today is a wholly different place, and has very different values, to those, which existed in the early 1980s when I was called. In those days, moving chambers was by no means unknown but it was very rare. It tended to happen when a change in a barrister’s area of practice resulted in the barrister being rather isolated in his or her original chambers. The idea, however, that someone would move because they were offered a better financial deal by a different set would have been frowned upon.

Now, barristers may move chambers more than once in their career, tempted away, as they often are, by offers they cannot refuse as a means of snaring their services by another set. Of course, that may have a seriously destabilising effect on the chambers they have left, but that does not appear to be taken as seriously as it used to be. And, if one strong member of chambers goes, not only is there a substantial loss of chambers’ income, and possibly chambers’ solicitors too, but it can also set in train a domino effect, again to the great detriment of the chambers which the barrister is leaving.

What about the position when a chambers has reached the point at which it is to be dissolved? Clearly there are more people affected by this than the members of chambers and their staff. In the first place, there are the lay clients of the barristers who are in those chambers. I suppose that, if the barristers are able to find alternative chambers, the instructions move with the barrister, subject to the consent of the lay and professional clients. But what of those who cannot find alternative chambers? Presumably, they would have to set up as sole practitioners. There is a problem here, though, for those who have not carried out three years in practice after the satisfactory completion of pupillage because they would not be permitted to become sole practitioners. They would be placed in a very difficult position, particularly if the lay client was very anxious for them to continue in the case and was perfectly satisfied with the service offered by that barrister. In a private case, it might mean a considerable extra outlay for the lay client if the brief has to be returned.

Arrangements will have to be put in place as to how the monies owed to chambers for the work are accounted for, and the chambers’ assets will have to be distributed and the liabilities discharged, presumably in accordance with the terms of the chambers’ constitution.

In addition to all this, we know already from the Bar Council Wellbeing Survey that practice at the Bar can lead to burn-out and stress, with consequent disruption to family life and private life in general. Only those who have been through the pain of dissolution will know how much it has affected them, but it cannot be an easy matter with which to deal, particularly when you know that loyal chambers’ staff will no longer have a job.

Finally, I have mentioned the constitution of chambers. It is vital that such a document has in it a comprehensive code dealing with how chambers may be dissolved. Otherwise, it is like an intestacy, but without the guidance of the Intestacy Rules. This sounds to me like a recipe for chaos.

I am not suggesting that the dissolution of chambers will become a common occurrence at the Bar. However, I do think that we all owe it to those who would be most adversely affected should such an event occur, to make proper arrangements in the event of the need, for whatever reason, to dissolve.

Alistair MacDonald QC, Chairman of the Bar

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