Over the past 12-18 months there has emerged a growing realisation that if the Bar is to preserve its position it needs new ways of doing business.
In November 2009 the Bar Standards Board adopted decisions liberalising the rules in particular in relation to partnership and practising through different corporate vehicles. During January 2010, together with the Circuits and certain of the Specialist Bar Associations, I will be organising road shows and meetings around England and Wales with a view to explaining how the rule changes create opportunities for the Bar and to listen to different views.
What is a barrister?
In past decades we defined ourselves – somewhat curiously – by what we did not do. We did not accept direct instructions from clients; we did not accept instructions from other professionals save solicitors; we did not conduct litigation and we did not go into employment or form partnerships. The platform for our specialisation was exclusive rights of audience in the higher courts.
But these old truths are no longer so. We do now accept direct instructions from clients in a number of important areas of work; we do accept instructions from a variety of other professionals; we do not have exclusive rights in the higher courts; and we are no longer all selfemployed.
Today we should define ourselves by what we do. We are predominantly a specialised, advocacyfocused profession and we are still predominantly self-employed. We add to this some other core Green: time to redefine the Bar features such as our collegiality which is manifest in the way we work in chambers, through our life-long membership of the Inns of Court, through membership of Circuits and through our traditional ways of working. Our flexibility and willingness to work with colleagues from other chambers enables clients and their solicitors to mix and match counsel in teams from across the Bar. We should also not forget our extraordinary record and reputation for pro bono work. We conduct this not for gain or to impress clients, but because we feel that it is a public duty.
But the Bar is an increasingly broad church. It has always been the case that the Bar provides high quality specialised advice, often unrelated to litigation or advocacy. We are also a profession with a substantial cohort of employed barristers who share our common values, many of whom are not engaged in advocacy. There are no longer any absolutes or fixed points of reference in the way we define ourselves.
So, in these more uncertain times, let me speculate about how the Bar might evolve and pose some questions.
In the future I can envisage a situation whereby the Bar is the natural home for all advocates. An advocate who thrives in practice as an HCA might decide to enhance his or her reputation and standing and apply to become a barrister. Such a person might wish not just to join the Bar Council but also to join an Inn. This might increasingly be the natural career path for all top flight advocates.
Indeed, such a person might even wish to retain the status of solicitor. Is there anything fundamentally wrong in a person being a barrister and solicitor at the same time? If the natural course of evolution for the Bar is to open its doors to the brightest and the best of all advocates then this might represent a way for the Bar to strengthen its position as “the place to be” if you want to be an advocate.
A career in advocacy might involve movement between the employed and self-employed sectors. The labels “employed” and “self-employed” would in such instances be far less relevant. A young barrister might start in chambers for a few years and then be seconded to the CPS before returning to chambers.
I therefore want to stimulate a debate as to how the Bar should move forward in a legal and economic climate that is – to put it mildly – fast-moving and challenging.
Legal aid challenge
Finally, I must say a word about legal aid cuts. Our challenge this year is to ensure that the legal profession is not unfairly singled out for disproportionate pain and to make the government understand the futility of slashing legal aid rates when an inevitable consequence of this is that costs elsewhere in the justice system will increase. Bad decisions cause inefficiency and slashing the budget is therefore an exercise in futility if cuts to legal aid have to be compensated for elsewhere in the budget. The Ministry of Justice really must embark upon a rational, evidencebased, assessment of the ripple effects and costs of squeezing legal aid. Regrettably they have not yet even begun to consider this issue. No doubt more of this later.
Nick Green QC is Bar Chairman