‘Turn and face the strange… Just gonna have to be a different man.’ David Bowie, Changes
‘That sensation of a void within which never left us, that irrational longing to hark back to the past…’ Albert Camus,
In a recent Counsel article, I outlined 10 things to consider in the short term to bolster the resilience of chambers (assuming, that is, chambers is ‘out of ICU’), dealing with mainly nuts-and-bolts issues of structure and governance and some key areas for supporting business continuity. Perhaps everyone should have had these in place already, but there’s nothing like a pandemic to focus the mind.
It’s now time to get creative. The very phrase ‘return to work’ has an unfortunately regressive undertone, but there will rarely have been a greater opportunity to review how chambers and its barristers work. A la New Labour in 1997, the Bar could steal the D:Ream mantra ‘Things can only get better’ as a spur to be innovative in the quest for the post-COVID sunlit uplands and, to quicken the Bar’s usually glacial pace of change, combine this with the Churchillian ‘never let a good crisis go to waste’. Furthermore, only the most optimistic barrister would think that COVID-19 is ‘the last crisis’ – can your chambers survive another?
Opponents of change often fear that the baby is inevitably going to be thrown out with the bathwater, and so discount anything but the status quo. Retaining the essence of the independent specialist advocate and enabling groups of them to effectively function in association with each other do not depend, though, on maintaining outdated operating methods. To quote again from Camus’s timeless allegory, ‘Orders!… When what’s needed is imagination.’
This pandemic has enabled us, I hope, to slay one particular shibboleth: that the most basic structure of a set of chambers is an ‘agile’ business model, a claim still made during this crisis. A business that is funded hand to mouth by its members who can leave at minimal notice, taking their clients with them the following day, that maintains no reserves to provide financial resilience and has to call on its members for any additional funding at a time when they too are financially stretched, that makes little or no investment in development, often underinvests in its staff and sometimes gives but a nod towards best business practice is not ‘agile’ but ‘unstable’. Any business model can survive the good and even the not-so-good times. Agility is proved by having the strength, flexibility, resources and resolve to overcome challenges.
Of course, the challenges are not the same for every set of chambers. ‘We’re all in this together’ is a vacuous political rallying cry for the nation, and it would be for the Bar. Some sets of chambers will be able to emerge from this crisis without painful scars. Nevertheless, I would hope that these chambers will, too, take the chance to examine how they operate – this may not be an existential challenge (in the non-philosophical sense) to them, but it is still a clear opportunity for self-contemplation.
There are some obvious functional steps chambers can take to streamline their operations. The printing, collating and wheeling around chambers, and to the courts and back, of vast amounts of papers is a ludicrous daily practice and public piece of absurd theatre. An exasperated clerk once told me that they take delivery on Monday of reams of paper, files and document boxes and then shred them on Friday. There really is no reason why the whole Bar cannot ‘go digital’ and the courts work with electronic bundles. For chambers, the cost savings are substantial and the space savings, once you also remove from barristers’ rooms the wallpaper of law books, enable you to devise far more economical and imaginative ways of providing working space. Short-term investment should also be made to provide the best video- and audio-conferencing facilities chambers can afford – there will be swift pay-back on this. But it would be dull to write about counting the paperclips and new IT when there are more fundamental issues.
Some things must lie outside the scope of this article, simply because of available word-count. HMCTS should expand the use of remote and partially remote hearings, not as a short-term reaction to the pandemic but recognising these can be highly effective ways of delivering justice. HMCTS should also consider a radical and long-term, rather than piecemeal and temporary, overhaul of the court estate – what is fundamentally wrong with the concept of out-of-town ‘judicial malls’? Why do ‘term times’ still exist for some courts? Do barristers have to be in court in all trials? Why are there so many representative factions in the Bar, operating independently from the Bar Council? Is 17,000 too many barristers? What (again) about further ‘fusion’? How has the justice system come to be regarded more as an adjunct to society rather than an integral part of it? Does protecting the justice system mean protecting every barrister? And, why, oh why do barristers still have to wear wigs? (There are lots of further articles in these!)
At a time when a Bar survey revealed that 60% of chambers did not expect to be able to trade for more than 12 months without additional financial support, it is right for barristers to question whether ‘a set of chambers’, in its current form, remains the best or only model. Dissolution of chambers, now, means one of three things to each member: join another set; become a sole practitioner (not something the most junior are allowed to do); or give up self-employed practice.
Several will fall into this last bracket, either because they’ve had enough of working at the Bar, for whatever reason, or circumstances have led them finally to realise that they don’t have a credible practice – it’s a sad reality, often not directly confronted, that having practised for 20 years doesn’t by itself make you as good as every other 20-year practitioner; many clerks will breathe sighs of relief.
But, if there is this ‘bonfire of the chambers’, even if it’s nowhere near the level of 60%, there will be many barristers who will be looking for a home or facing, wholly unprepared, the prospect of sole-practitionerhood. How about, instead, developing the idea of a Bar Library? The options for a self-employed barrister would therefore be: member of chambers; member of the Bar Library; sole practitioner.
As some go to the wall, we could see the growth of some larger sets and associations of sets under common governance and support. Many successful, smaller, niche sets will continue to thrive. Others will try to struggle on. However, I reckon that increased financial pressure will lead many chambers to question whether they can support every member who goes on parental leave, is a carer or who takes a related career break. This will be a major challenge to the relatively new equality and diversity provisions. Recognising the vulnerability of independence led many practitioners to press for the adoption of measures developed in the world of employment to provide financial protection. This has caused some intriguing, contorted leaps through logical hoops – how to define ‘flexible working’ for someone who is self-employed, for example. That the Bar’s regulator has taken to defining rules, which chambers (which the BSB doesn’t regulate) must effectively obey, about the collective treatment by chambers of independent, self-employed barristers, is another confusing aspect that somewhat blurs what independence means and brings further into question whether barristers are self-determining or are, rather, partners in their chambers. In a business model which tends to focus almost exclusively on the present, more barristers will start to openly question why they should pay a greater proportion of their income, which is increasingly harder to earn, on supporting every currently unproductive self-employed barrister in their chambers, rather than, perhaps, a select few who have the potential to substantially benefit chambers. (I’m not proposing this approach, but I am sure many will consider it.)
This reaches into the heart of the chambers’ model. Usually, from the moment of full qualification, a barrister is given a ‘job for life’ as a member of their chambers. However, other than knowing that it is really difficult for chambers to throw you out, it provides little or no security in the eat-what-you-kill, no-salary, no-paid-holiday, no-sick-leave, no-pension world of self-employment. But, in chambers, this most often also comes with ‘no assessment’. If your membership doesn’t positively benefit chambers in some way, but you continue to pay whatever minimum contribution, even though you may take up more than that in resources, neither you nor chambers is being well served. This is by no means a new difficulty, but now is a chance to address it.
Another advantage to the barrister of formal appraisal and, indeed, greater self-assessment, would be an increase in training and coaching. Too often, I have heard ‘training is fine if your practice is failing’. Universal recognition across the Bar that continuous development in conjunction with others is something to be positively sought, if only because of intellectual curiosity, would be a quantum leap. It might also improve the parlous level of financial provision for coaching and training of chambers’ staff.
This focus on the present means that the chambers’ model brings no incentive for long-term investment in the business. For many barristers, chambers’ planning beyond about three years is unconscionable and thus for its managers, without guaranteed investment supporting concrete strategy, highly uncertain. Therefore, there is no innovation, as innovation requires investment and risk – there is no fast buck to be earned, and things can go wrong, money can be lost. For people who tend to ask their clerks a week after a sponsored conference ‘have we seen any marketing benefit?’, turning this around will demand considerable cultural change. Part of that might involve how barristers can, without risking their independent status, derive long-term benefit from their membership of chambers which they can access later – a chambers’ debenture scheme, perhaps, to provide funds both for chambers’ investment in development and for the member to benefit from at the end of their career.
Without going the whole hog towards ‘fusion’ (though more of that will happen), some chambers will pursue inventive ways of diversifying the business of its service company – which makes this way of operating even more sensible. Widening the scope of what the service company delivers will increase its customer reach and, probably, its turnover. Within some regulatory limitations, chambers’ service company could bring in many complementary businesses – think of a spa, which also has a gym as well as physio, osteo, chiropractic and massage treatment rooms, a nail bar, a hairdresser and restaurant; this isn’t just a swimming pool. Chambers is neither a club nor an immutable institution to be unquestioningly revered – it is merely a structure of doing business that should be dynamic.
There is another substantial elephant roaming the corridors of chambers, unremarked upon: it’s time to re-examine the staff structure. The almost universal model has chambers trying to recruit, at the age of around 18 to 22, someone who can initially be a dedicated performer of fundamentally dull and repetitive tasks while being unfailingly polite and thick-skinned, with the potential to develop into a strong administrator, fee-keeper, counsellor, marketeer and salesperson. The Bar is the only sector I know that tries to find someone who fits every category. As well as realising that most folk aren’t psychologically suited to all of these together, most businesses have recognised that you recruit, develop and pay people according to the particular functions of their role and the skills and benefits they bring. COVID-19 has also highlighted the importance of expertise in HR and compliance, and the immediate future will show how vital is initiative in client-care and business development.
So, I’ve noted here a few issues, not by way of solutions but as topics for further discussion. The chambers that ultimately emerge successfully from this pandemic will not be those which have somehow just managed to survive, but those which have taken the opportunities to benefit, which will have recruited stars from failing competitors, and which will be looking at ways to prosper and invest in the changes it has decided will lead along the path to success.
Most sets, though, won’t bother, and we won’t remember their names.
‘In seasons of pestilence, some of us will have a secret attraction to the disease –
a terrible passing inclination to die of it.’ Charles Dickens, A Tale of Two Cities