If it ain’t broke, don’t fix it

A tribute to outgoing Law Society President, John Wotton; a welcome to his successor, Lucy Scott-Moncrieff, defender of the High Street law firm; examining the aims of Price Competitive Tendering and the likely results both for the Bar and for justice

Contributor
Michael Todd QC, Chairman of the Bar

I would like to take this opportunity to pay tribute to John Wotton, the outgoing President of the Law Society, and, of course, to welcome his successor, Lucy Scott-Moncrieff. John has been an outstanding leader of the solicitors’ profession, acting as he always has to promote access to justice and in the public interest. An extremely able and skilful “City” practitioner, specialising initially in corporate law and latterly in competition law, he brought to the office not only his considerable intellect but also a very pragmatic, no-nonsense approach.

Whilst leading a profession, some parts of which, at times, are at odds with the Bar in the delivery of legal services, John recognised readily that the Bar on the one hand and solicitors on the other hand provide, cost effectively and efficiently, complementary services. It was John who recognised that “there is no strong current of opinion in favour of fusion on the part of the members of the professions or their clients.” That approach has always allowed us to have a constructive dialogue on most things with the Law Society, to make common cause on matters of mutual interest. It has been a pleasure to work with him.

I was therefore pleased to see the report, in The Times of 5 July, of Lucy Scott-Moncrieff’s support for the beleaguered high street firms. They serve the many who cannot afford the fees of large, or even mid-sized, City firms. They are the firms which provide, personally, the essential legal services for the everyday problems of the public. Of course, it is those high street firms which, from time to time, need to “hire” or contract in specialist services, to which they otherwise do not have access, be those advisory services in specialist areas of law, or specialist advocacy services. They are essential to access to justice for the many, not just for the few. Long may they continue to survive!

I was also interested to learn of Lucy Scott-Moncrieff’s business model. Where before have I heard of a business model involving a collection of self-employed practitioners, renting offices, or perhaps working from home, with overheads so low that the fee-earners are capable of keeping as much as 70% of what they earn, rather than the 35% or so of the gross fee, which is the norm. You might be forgiven for thinking that Lucy Scott-Moncrieff is describing the Chambers model for the self-employed referral Bar. But she is not; she is describing her own business model. Perhaps we are getting something right after all.
It is that low overhead which enables the specialist services of the Bar to be so competitively priced, and more affordable. Taken together with the fact that the services of the Bar are not in themselves an overhead for the high street, or indeed any firm, but a specialist service available on demand to any of those who - from time to time - are in need, it is little surprise that the model has, in the past, proved to be so attractive to the Bar, to the solicitors’ profession, to the Government, to in-house legal departments, and, indeed, to the public.

Were it not for the threat of Price Competitive Tendering in publicly-funded work, I have little doubt but that at the publicly-funded Bar, things would stay very much as they are at present. After all, if it ain’t broke, don’t fix it. Over time, the model will change to provide further efficiencies where available, to make improvements in the delivery of legal services. But those changes would be made for a good and substantial reason, just as they are being made at the chancery and commercial Bars who are seeking both greater shares of existing markets and to break into yet further markets not available to the traditional referral model.

What is the good and substantial reason in relation to the provision of publicly-funded legal services? We are told that it is intended to bring about the legal equivalent of the Big Bang in the City of London, of the end of the opticians’ monopoly and the advent of the “Specsavers society”. The Bar has always recognised the benefits of competition, in terms of cost, and in terms of quality. Reputations are built and destroyed by competition. As the saying goes, you are only as good as your last brief. We all know that, and we choose to operate in that environment.

But competition cannot be an end in itself; competition with what objective in mind? Competition with what results? The danger, of course, is that the large organisations will be awarded all the contracts, the smaller units, Lucy Scott-Moncrieff’s beleaguered high street firms, will go out of business; there will be blood on the high street. Monolopolist providers and a monopsonist purchaser; interesting model for competition!

Shortly before I began writing this column, I was reminded yet again by the Secretary of State for Justice, the Law Officers, and by the Ministry of Justice that PCT is coming; it has merely been postponed.
Lucy Scott-Moncrieff’s response is to turn her firm into an LLP, as a prelude to becoming an ABS. Whether such a business model will continue with low overheads inevitably depends on its structure and constitution.

What will our response be to PCT? We must have a response. The public interest will not be served by the independent referral Bar, or indeed those high street firms who undertake publicly funded work, ceasing to exist.