Decisions, decisions

Is your chambers constitution the weakest link? Advocates for corporate change, Robin Jackson, David Barnes, Catherine Calder and Nick Rees explain how to re-structure for maximum decision-making effect

ADAPTABILITY, STRATEGY AND GOVERNANCE
Robin Jackson offers a whistle-stop tour

‘For any company in any industry, the key is not to get stuck with a single simple notion of its source of advantage. The best competitors, the most successful ones, know how to keep moving and always stay on the cutting edge.’ George Stalk Jnr, Harvard Business Review, July 1988.

Debate about how chambers are run is probably as old as the Bar itself, but there seems a lot more of it about at the moment. Whatever the outcome, this sort of introspection is a good and progressive process. I am fortunate enough to have been employed by two forward-thinking sets that have sought ways to develop their internal governance, business offering and routes to market. They’ve even accepted you can use such terms without apologising or making deprecatory ‘quote signs’ at the same time.

Although a growing trend, this view is far from universal. There are barristers and even associations who appear to regard negatively the introduction of many practices from the commercial business sector. This isn’t unique to the Bar; it occurs in areas of the public and voluntary sectors, and even in the private sector itself. Standing still, though, as the quotation above says, is unlikely to be the best option in a competitive market. There are very few nowadays who would imagine the legal services market to be anything but strongly and increasingly competitive.

Changing resistance to change

Altering the approach to change is one of the most difficult challenges of leadership in any organisation. Many barristers describe themselves as being fundamentally resistant to change, but, again, this is no different from many other professions. When you’ve worked in a largely conservative environment, change of any sort tends to be a monolithic event brought about by unavoidable necessity, which inevitably brings with it considerable uncertainty and disruption before the possible benefit might be felt. If you can overcome this reluctance, and demonstrate that change can and should be a gradual and evolutionary process, the beneficial outcome of constant self-analysis, then you can introduce a culture of individual and collective development. While in no way diminishing the independent, self-employed nature of a barristers’ practice (a critically important selling point for this part of the Bar), you can then get members interested in examining how they can gain benefit from association with each other and from the resultant brand, and in working towards enhancing the business further.

This introduces the concept of collaboration, which, for the business to gain maximum success, means meaningful, mutually respectful collaboration between individual barristers as well as their staff and across the Bar as a whole. By this, I mean everyone involved in the business of barristers: collaboration between the Bar Council, Specialist Bar Associations, Circuits, Institute of Barristers’ Clerks and Legal Practice Management Association, and the Bar Standards Board as our regulator. Collaboration remains something that needs particular attention.

While you’re working on your approach to change, you also need to think about what chambers is going to do. Yes, you need to formulate a strategy and a budget to support it, and you need to know how to implement it. Chambers that have never formally discussed their strategy will, I guarantee, find it an energising process. A group of highly intelligent and analytical specialists in their fields discussing among themselves and their business and practice managers how they might work together is an exciting and sometimes highly charged experience. Resolving the inevitable contentions and distilling everything into a definable strategy can be a demanding exercise, but the result is a distinct focus for chambers and one which its members know is their own.

Once you have your strategy, you must align your budget with it, and do so realistically. If you cannot afford your strategy within your existing resources, you either need to extend your resources (a potentially controversial step in itself) or amend your strategy. Failing to do so will result in frustration, disappointment and delay, which will all be significantly counterproductive.

The essentials

As with the concept of change, strategic analysis is not a one-off exercise, but involves a process of constant review. You need to work out how you are going to measure and report your performance against your strategic objectives, which brings us, briefly and finally, to governance. I will not repeat in detail here what I and many others have said before (and will no doubt say again) about the governance of chambers, but I will close with a few ‘headlines’ on the matter, which I believe are essential for a set of chambers that wants to become or remain successful in a turbulent market:

  • Above all, avoid the anachronism of the highly autocratic model of chambers’ leadership – even if it works for you at the moment, it will end in failure.
  • Have a permissive constitution – state what must be decided by everyone in chambers, and delegate the rest to a management committee or board, rather than delegate specific issues and reserve everything else for chambers’ meetings.
  • Have a properly representative and elected (not appointed) management committee, with as much transparency as possible in its work (accepting that some exceptional issues have to remain confidential). This engenders trust in its members and its decisions. Membership of a management committee is a highly responsible and sometimes time-consuming role.
  • Include your senior staff managers in the committee.
  • Understand that decisions don’t have to wait until the next (physical) committee meeting – achieve consensus by email.
  • Reduce the number of sub-committees to an absolute minimum, as having more committees often means more delay in decision-making, without significant additional benefit.
  • Whatever sub-committees you do have, delegate authority to them. Also, delegate to your senior managers the authority for operational decisions and expenditure within the strategy and budget. (I’m happy to explain the concept of auftragstaktik or mission command to anyone who wants to ask.)

So, that’s a whistle-stop tour of just some aspects of how to position your chambers for success. Far more can be written and discussed about each, and I would encourage you to do so within your chambers and with others. I have not even touched on the subjects of training (yes, everyone needs it) or other best business practices, but maybe that’s for a future article. 

STREAMLINE TO SURVIVE
Nick Rees offers advice on how to become a slick set

One of the real transformations in chambers over recent years has been a structural one; we’re seeing sets streamlining their organisation. A stumbling block to change has often been the traditional constitution, which can be static, outdated, less than versatile – the Achilles heel to change. Recognising this, many sets are working with newly written documents that are fluid, frequently updated and adaptable in line with demands.

Traditional set-ups of one member, one vote, cast across a wide range of issues is also outdated. This can be an ineffective and sluggish process and slow down any resolutions. Holding management committee meetings monthly, or even less frequently, can mean several months pass before a final decision is made; and lost impetus may not deliver the best result.

Allowing barristers to vote is, of course, a democratic way to run a set. However, it is often physically impossible to get everyone together. Although technology has helped move things on, eg electronic voting, this can still be a lengthy process. Barristers may be asked to vote on an issue which has little bearing on their working life, or about which they are not well-informed.

The slicker sets are thinking about their decision-making processes and adapting their structures to streamline and refine their businesses. With the advent of more managerial and business development roles in chambers, corporate structures are being introduced. These necessitate strong and progressive leadership, affirmation of shared values, a sense of togetherness and a clearly defined and documented approach to strategy – not all of which is easily achieved by a collective of busy independent professionals.

Speeding up the decision-making process

One way to restructure the decision-making process is by creating committees with increased foci and greater powers. Particularly pertinent to recruitment processes, some sets have been able to significantly reduce decision times; imperative where an applicant is talking to multiple chambers. Good people can be lost in a long-winded process. Better that relevant members decide on the issues which impact them, eg recruiting barristers in their own practice areas. To make these focused committees viable, they must be empowered to make decisions. Creating committees can also be a great way to boost buy-in from junior members and involve them in the decision-making from an early stage.

Working parties can also speed up processes. Given powers to consider, review and provide answers rather than being required to report findings back to a management committee, they can dramatically reduce turnaround on prominent issues and projects. Budgetary control is also a useful tool: where costs fall within pre-set budgets, these can be agreed quickly, thus removing the requirement for potentially lengthy review and sign-off from others.

Avoiding the pitfalls of change: making it work

There are a number of pitfalls to consider when adapting a chambers’ structure. This is a process which can’t be rushed. The right people must be selected for any group with significant decision-making powers. There’s also a risk that barristers may feel left out of the process if they are no longer being asked to vote on what they may consider to be key decisions. Many a crucial decision is best discussed face-to-face. Introducing a new structure requires a sea change and it can be difficult to change minds where a considerable group may feel the current structure is effective.

A lack of understanding of how roles work in chambers could also be a hindrance when introducing a new structure, so outline clearly everyone’s roles and responsibilities. It’s also important not to adopt a ‘one-size-fits-all’ approach, taking time to work with individuals and groups, recognising strengths, weaknesses and agreeing appropriate definitions of terms like ‘success’.

Working in teams, for many sets, were a novel introduction and initially seen as a client benefit – creating teams which appealed to customers and their needs. Now we’re seeing the wider business benefit, enabling a more analytical approach, tracking where work is coming from, where it’s going, as well as looking into service levels and client responses.

A key element to adapting a structure is giving ownership to barristers and staff, sharing responsibility and showing individuals what they are personally contributing. Interestingly, some sets are introducing targets for employees and barristers. However, this a careful line to tread and must be considered prudently. Targets can help evaluate outcomes and create a more sophisticated way to measure success, but targets are not the reason many came to the Bar.

Ultimately there is not one right answer when it comes to introducing a new structure. Sometimes restructuring can have elements of failure. However, it is important to evolve – even if that means being prepared to get some things wrong, otherwise sets are in danger of being left behind. 

TAKE IT FROM THE TOP: STRONG LEADERSHIP
David Barnes weighs up the essential ingredients of a well-functioning management board

Managing a barristers’ chambers requires strong leadership.In my view, this starts with head of chambers and the senior clerk (whoever is responsible for the day-to-day management and development of chambers) but ultimately it requires a properly elected management board. In recent times, discussion related to chambers management has focused on the corporate structure. Chambers can arrange themselves in the form of a limited company, LLP or several other types of structure.However, the precise structure is irrelevant without proper consideration as to how chambers wishes to operate. The structure serves chambers and not the other way round. Thedevil will be in the detail of the wording of the member service agreement/constitution.

It is, of course, imperative that the leadership of chambers creates and maintains an environment where members feel able to communicate freely, but this does not mean that all barristers need to be involved in every decision.The key issue is for the membership to define a structure which ensures that decisions can be made effectively and in good time.This will result in members not being consulted on all matters. However, the leadership must ensure that they regularly communicate with the membership about the decisions being taken at board level so that the members feel properly informed about the management decisions made on their behalf. Chambers should have at least one meeting per year where members have the opportunity to contribute to the ‘big’ decisions eg strategy, property.

Some chambers might function very well without the need for numerous committees. Some might think that this is strange in the modern world of the Bar.However, too many committees can quite often be at the root of ineffective decision-making. I do not necessarily believe that the notion of a committee is a bad thing; it is just that one needs to clearly define their remit and purpose. There is a risk that committees and particularly the chairs of committees can fall under the misapprehension that their remit is a fiefdomand end up fighting with the management board or fellow members as they try to impose their views on the management.

For example, in a set which has a range different practice groups the leadership must consult with each group to ensure that their views are properly considered. However, the ultimate management decision might often involve compromise so as to ensure that the differing views of each group are balanced.

The key to success is, in my view, to form a committee which has a defined scope to assist the management board and the chambers as a whole with their respective decision-making. The clear purpose being to find solutions that benefit the entire membership and not just the few. Ultimately, if the members have devised a fair and transparent way of electing its leaders, then they should have the confidence that those duly elected should be able to make the necessary decisions when called upon to do so. 

THE NON-COMMITTEE MODEL
Catherine Calder explains how dispensing with committees enables swift but representative decisions

The challenge for a modern chambers is to establish a streamlined process which enables the set to take decisions swiftly when appropriate, while at the same time meeting the need to reflect as far as possible the views of the individual barristers as self-employed sole practitioners. Often this is complicated by the variety of those views and the scope of the issues involved. Decisions might encompass points on strategy, finance, practice development, property management, commercial relationships, wellbeing, HR, IT, quality assurance and regulatory compliance: they range from the trivial to the pivotal.

Different approaches suit different sets. At Serjeants’ Inn, we have largely dispensed with committees in order to relieve our barristers of the burden of management and to enable them to concentrate on their cases and clients. In particular, we do not have a management committee of barristers charged with running the set. While many individual tenants continue to contribute on a wide range of issues, we have appointed a senior management team comprising a business director, director of client care and senior clerk, working under the leadership of our joint heads of chambers.

For such a system to work, it is vital that people have confidence in the decision-makers: trust is key. Subject always to confidentiality, we seek to ensure that everyone has a voice, taking a collaborative approach with formal and informal consultation by a variety of methods: our intranet with discussion boards, news feeds and videos of internal training sessions and meetings; member and staff surveys; practice and other team meetings; social events, etc. Communication is facilitated by the design of our premises – a single-floor, partially open-plan set-up with desk-sharing and hot-desking – which enables easy interaction between everyone in chambers.

A fundamental exception to this devolved approach concerns decisions relating to recruitment. It is part of our strategy to expand but we cannot countenance any dilution of the excellence of our team. For this reason we have a rigorous three-stage recruitment process and our constitution requires that any proposed tenancy offer must be agreed by a vote requiring a majority of at least two-thirds of those voting, being not less than half of the total membership of chambers.

At a time of challenge and change for the profession it is crucial that the set is run as a business for the benefit of barristers, staff and clients. We believe that our operational model has been part of the appeal to the 12 tenants who have joined us since 2015 – an expansion of over 25% – and that it will continue to contribute to future growth. 

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Robin Jackson

Robin Jackson is Co-Chair of the LPMA and Chambers Director at 3 Verulam Buildings

David Barnes

David is the Chief Executive and Director of Clerking at 39 Essex Chambers, which in 2012 were named Chambers of the Year at the British Legal Awards.

Catherine Calder

Catherine Calder, director of client care, Serjeants' Inn.

Nick Rees

Nick is a co-founder of GRL Legal LLP and Managing Director