Two barristers from the Young Barristers’ Committee give their views on the potential pros (Adam Baradon) and cons (Alexander Learmonth) from the point of view of the effect all this would have on recruitment to the profession.
In its response to the consultation, the Bar Council’s working party assumed that barristers will adopt normal profit-maximising behaviour. In other words, if solicitors find it profitable to form partnerships, and to deal with conflict of interest situations as they arise, then in all likelihood so will barristers. The likelihood is that BOPs will resemble solicitors’ firms structurally, with a small number of partners consisting of more senior barristers and a large number of junior barristers, who are obliged to report to their partner, work when they are told to work, and meet billing targets.
Certainly for some, the opportunity of providing specialist advocacy and advice in an employed environment is ideal. Employees of course enjoy a regular income, statutory maternity leave, holiday pay, pension contributions and other benefits. But I venture to suggest that most young people do not come to the Bar to be on a wage. They want to be their own boss from day one, not just one day. They want the flexibility that self-employment offers. They want to be paid directly from the work cases they do, rather than working to line the partners’ pockets in the hope of future preferment.
The Young Barristers’ Committee carried out a survey to test that perception. Two-thirds of Bar Vocational Course (BVC) and final-year law students – and nine out of 10 current pupils and barristers under three years’ Call – said they would prefer to be self-employed rather than employed (whether in existing structures or BOPs). Well over half of pupils and barristers would actually have been discouraged from becoming a barrister if a substantial number of the tenancies currently available were converted into employed positions in BOPs or LDPs. No one knows which areas of practice are more likely to succumb to new models of practice, but it is widely said that the publicly funded Bar must adapt to survive in the face of increased competition from solicitor-advocates and ever-decreasing legal aid pots.
What also came across from the responses to the survey is that students appreciate the importance of independence to the work of barristers. Employed barristers value the profession’s independence, and already have to work hard to maintain it in the face of pressures from their employers not faced by the self-employed Bar. Those pressures would surely intensify in the context of BOPs. Thus 87 per cent of survey respondents thought that the continued existence of a strong self-employed Bar alongside the employed Bar was important to promoting healthy competition between barristers, 88 per cent thought it was important in promoting high standards of advocacy, and 84 per cent thought it was important in promoting strong professional ethics.
In short, if BOPs were to start to replace the traditional chambers’ structure, the Bar would be throwing away one of its main attractions to aspiring law students. The self-employed chambers’ model is one of the Bar’s unique selling points, not just to clients, but to the barristers of the future.
Employment opens the profession to those who might otherwise struggle with the level of commitment to hours and exposure to risk characteristic of the junior self-employed barrister’s experience. In particular, those with young families and others who have little or no financial backing (and often a very large student debt burden) are offered a degree of security of income and hours simply not available in chambers. At a time in which we are looking to increase diversity at the Bar it is difficult to see how that could be a bad thing.
I agree that LDPs and BOPs would probably follow a law firm model. This is a model that works for thousands of young, successful, and finacially comfortable solicitors, and their clients. The concept of “wage slave” is alien only to those with the luxury of pre-existing wealth, and I imagine most young barristers would be surprised at the notion that they can turn work away at will and yet continue to be briefed.
The regret that employees do not pocket the entirety of the fee charged for work is misplaced, too. Employed barristers are charged out at a considerably higher rate than that received by self-employed barristers and higher than they strictly receive themselves in salary, but if you factor in their benefits, their incomes compare favourably.
This reality is perhaps reflected in the statistic that only around half (55 per cent) of pupil and barrister survey respondents would actually have been discouraged from becoming a barrister if a substantial number of the tenancies currently available were converted into employed positions in BOPs or LDPs. Of the student respondents 23 per cent said that they would actually be encouraged, and to the majority (46 per cent) it would make no difference. Clearly employment is not a disincentive to students aspiring to the Bar. When offered as an alternative alongside self-employment, it serves to broaden the Bar’s appeal.
In truth it is very unlikely that the creation of LDPs (and, if they are permitted, BOPs) would lead to the conversion of tenancies in self-employed practice to an equal number of employment equivalents. The law firm model has succeeded in providing a large number of training and junior positions to solicitors. It follows that in the world of LDPs and BOPs, the number of tenancies should increase, as should the number of pupillages.
One should also not forget that there are currently a number of very senior barristers practising from law firms but under the present rules they are not able either to participate in the ownership of the firm or to train young barristers within it. The creation of LDPs would allow them to do both.
Lastly, I suggest that it is unlikely that LDPs (and, if they are permitted, BOPs) would replace the traditional chambers’ structure to any significant degree. The opportunity to be one’s own boss and to practise without fear of conflict of interest will remain a huge draw to many. For those who choose employment, the new structures offer the opportunity of standing at equal arms with their existing colleagues. For future generations of barristers they offer new choice, and greater opportunity to join the profession.
Alexander Learmonth is the chairman of the Young Barristers’ Committee and a self-employed barrister at New Square Chambers. Adam Baradon is an employed barrister at Lovells