Succeeding as a young barrister has never been easy, but rarely can challenges have combined in quite the way they do today.
The cost of training, increases to court fees and cuts to legal aid are all contributing to put pressure on members of the junior Bar, with individuals potentially finding themselves facing the prospect of paying back tens of thousands of pounds in student debts while also trying to establish and finance nascent practices in an often fiercely competitive market.
Faced with such factors, many junior barristers have been forced to look hard at their options and some have abandoned the profession altogether.
The situation is reflected in recent statistics. Since 2005 the number of barristers five years’ Call and under has fallen by 36%, while the figure for those between six and 10 years’ Call has dropped by 24%.
These figures were highlighted by Chair of the Bar Andrew Walker QC during his keynote address at the Annual Conference of Barristers’ Clerks in November 2017.
During his speech Walker also stressed that this decline was not only set against a background of more practising barristers than ever (16,272), including 12,950 at the self-employed Bar, but that it coincided with a rise in the number of older individuals, with the figure for active barristers of 30 years’ Call up by 90% since 2005.
The potential consequences of this could barely be overstated, he added: ‘We will not have a sustainable, separate profession of barristers in the medium term, never mind the long term, if we are not recruiting and retaining a cohort who can learn their craft of advocacy and specialist advisory work from the outset, and then move on to become the top advocates and Silks of the future.’
Supply and demand
A similar conclusion is reached by Tony Williams, principal of legal consultants Jomati, a former managing partner at Clifford Chance and someone with a personal interest in the subject, as his daughter was until recently a member of the junior Bar.
‘The issues are really threefold,’ he says. ‘First, cuts in civil and criminal legal aid have decimated the amounts junior barristers receive. For example they may get £50 for a magistrates’ court hearing, but they need to travel often a fair way so their rail fares and chambers levy come off this.
‘Second, as firms get larger and more specialised, there is less demand for the junior Bar and, third, the number of barristers has increased significantly over the past 15 years so there are more people going after less work.’
Add to that legal aid cuts reducing the amount of work available at the criminal and family Bar, and increases in court fees resulting in civil litigants either cutting spending on representation or giving up on the legal process altogether; meaning there are fewer cases available that might once have been handled by members of the junior Bar.
Williams adds: ‘Of course this doesn’t apply to junior barristers in the handful of top sets who earn well from day one, but competition for places in those sets is fierce.
‘Getting pupillage and then a tenancy is really tough in publicly funded and common law sets. In the absence of a more sensible approach I am afraid this issue will only be addressed by some tough attrition, with juniors moving to law firms, going in house or leaving the law until a balance is found. I fear that may take some years.’
Money and flexibility
Pressure on fees is also having a detrimental impact on the retention of many (largely female) barristers attempting to balance the demands of career and family, as Sam Mercer, Head of Policy, Equality & Diversity and CSR at the Bar Council, points out.
‘It’s a combination of money and flexibility,’ she says. ‘When it gets to the stage where the sacrifices you’re making in your work-life balance are not sufficiently compensated people begin to question why they’re bothering.’
‘In the past people were prepared to make the sacrifices; to work the weekends and to work the nights because they could earn enough that way to, for example, take the school holidays off and compensate for not being around at other times. But if you’re working nights and weekends and that still doesn’t yield enough income to take time off then you really do question it.’
She points out that such flexibility is often more achievable for those working in better funded areas, such as the commercial Bar, and also depends on the nature of an individual’s business.
‘If you have a very court-based practice it becomes very difficult to work part time, for want of a better phrase. It’s particularly difficult to organise childcare because the unpredictability [of it] means you’ll never know if you are or aren’t going to be working.’
Mercer suggests such issues will only be overcome with a fundamental overhaul of some aspects of the profession. ‘I think we need to start thinking outside the box within some practice areas and to look at innovations that would allow people to work fewer days per week and still have a court-based practice.’
Work allocation needs to be addressed, she adds. ‘Are women being given opportunities to develop their practice in areas that are potentially more flexible and lucrative? I think some chambers are looking very closely at who is briefed on what and whether there is a fair approach to work allocation, but we haven’t got it right yet.
‘We’re talking about a mindshift within chambers. There’s definitely evidence of this happening, but progress is slow and the current wider crisis causing pressure on incomes at the bar is not helping.’
Bar Council initiative
This pressing need to address far-reaching issues of retention is one of the drivers behind a Bar Council initiative designed not only to throw further light on the reasons why people are quitting the junior Bar, but also to come up with ways to stem the flow.
Onyeka Onyekwelu, policy analyst at the Bar Council, explains: ‘We want to have an in-depth conversation with [members of] the young Bar about what the experience of the early years is really like in practice.’
That process will include not only the accumulation and analysis of data about practice areas and incomes, but will also involve nationwide focus groups that aim to provide insights into the realities of life for younger barristers.
Onyekwelu adds: ‘We need to find out what we can do as a representative body to stop this issue from escalating.’
She expects a variety of reasons to come to the fore, including training and living costs, in addition to stagnant fees at the criminal and publicly funded bar.
‘Many people either find themselves diversifying their practice or finding an alternative; whether it’s becoming an employed barrister or leaving the profession altogether,’ she adds.
‘Becoming an employed barrister offers stability, but in terms of becoming a QC then employed barristers are by and large not represented in the way they’d like to be. There are pros and cons of the employed bar and, if you’re looking long-term, there are probably a lot more cons than there are pros, though that is changing. In the short term, though, it can provide an avenue for young barristers who are struggling to make ends meet.’
Contributor Dan Hayes is a freelance journalist
Sumaya Gilmore: attend to the peripherals
Family practice manager, Garden Court Chambers
‘Our work is largely funded by legal aid. Solicitors managing legal aid contracts are under immense pressure, so it’s really critical that attendance notes and billing notes are sent out promptly. Solicitors just don’t have the time to chase these and it’s for the clerks and the barristers to make their lives as easy as possible. Someone may be a brilliant advocate, but if they’re not doing the peripherals in an efficient way, solicitors may think that reflects badly on the way they work.
‘I’d recommend junior barristers shadow a senior barrister who works in the same area of expertise. It provides additional exposure to solicitors and builds your profile within chambers.
‘Don’t be afraid of the clerks. We’re there to encourage a barrister’s practice to grow. There’s usually a lot of experience in the clerks’ room and barristers shouldn’t be afraid to ask for advice; the last thing I’d want to see is a junior barrister over-committing themselves because they’re not communicating properly with the clerks.
‘Work with the [chambers’] marketing team to get involved with seminars, writing blogs and using social media – you need to be seen as much as possible, either digitally or in person.'
Owen Lawrence: working with the clerks
Senior practice manager at 39 Essex Chambers
‘I think people sometimes bypass what they have under the roof of their own chambers. There is such a great source of work from talking and understanding your chambers in detail and working together as a set.
‘Work with the clerks. When pupils join, you often don’t see them in the clerks’ room, but it’s essential from day one that they get to know each other because the clerks will be putting them forward [for work]. It’s important the clerks know who they are or they won’t be able to match them with the right people.
‘If you’re not using LinkedIn, remember that someone else will be. A client may read an article [on LinkedIn] about a niche area of law and realise someone’s got knowledge in that area. People aren’t going to look at your CV without a reason. You need something to attract them.
‘As a chambers we second people into [law] firms quite regularly. We make sure individuals aren’t there just doing a discovery exercise, they’re there to speak to the lawyers and build relationships while they’re in the building. In a way, it’s less about the case they may be doing, it’s more about building those relationships so when [solicitors] are instructing they know and trust them.’
Ben Perry: maximising every opportunity
Clerk team leader at Essex Court Chambers
‘The building blocks of success in practice are laid in those first five years. The best advertisement a barrister can have is their work. Always take the time to dig that bit deeper. The extra hour you spend can make the difference between good enough and outstanding and instructing solicitors remember outstanding.
‘Engage with your chambers’ business development programme and maximise every opportunity that presents itself, whether it’s writing an article on a relevant topic or giving talks on the cases in which you’ve recently been involved. Maintain your visibility particularly when you’re busy.
‘If you attend, or speak at, an event, make sure you collect as many cards as possible. Don’t just put them in your drawer; follow them up. Send an email around afterwards. You’d be surprised how many work opportunities arise in this way.
‘Target events. You don’t want to go to the opening of an envelope, so base [your attendance] on the practice you’re looking to build. This can be a very successful way to build your base of potential clients.’
This decline is set against a background of more practising barristers than ever (16,272), including 12,950 at the self-employed Bar, and coincides with a rise in the number of older individuals, with the figure for active barristers of 30 years’ Call up by 90% since 2005.