Mixing it Up

iStock_000010333165Medium1Pupils can follow more than one path to the Bar, advises Melissa Coutino. Split pupillages enable pupils to spend time with an employer and in chambers. They can be an attractive option for all, she believes

Pupils need to follow a single path” is a generalisation that both some self-employed and employed barristers may be culpable of making. This is not the case. Split pupillages, whereby a pupil spends time with an employer and  with chambers, can be an attractive option. They allow chambers and an employer to share their investment risk, regulatory burden and commitment to training, while benefiting from the work of a person who is keen, bright and eager to qualify. 

 


They also offer pupils double the insight into ways of working as a barrister. Split pupillages were popular pre-regulatory reforms. While unofficial loans and exchanges in specialist areas of work remain common, they feature less in part of a formal pupillage arrangement because of concerns about complexity. This article seeks to address those concerns.

Declining numbers

It is common knowledge that there has been a largely downward trend in the number of available pupillages over time. 1997 and 2002 were particularly bad years and although post 2005 there has been some levelling off, there is again the fear of a discernable deterioration in figures (see graph opposite).

Employed pupillages have fallen even more rapidly than self-employed pupillages over the last decade, despite the employed Bar retaining a constant 20 per cent share of the practising Bar. In canvassing reasons for the disproportionate reduction, two key issues were identified: (1) the introduction of increased, but necessary, regulation of pupillage requirements for employees and employers; and (2) concern over regulation and a lack of knowledge over exactly what is now required has resulted in the myth that the whole process of making a Pupillage Training Organisation (“PTO”) application and the rules that govern pupillage are very complex for employers.

Such concerns are not justified and the necessary information is more readily available than ever before, with the Bar Standards Board (“BSB”) issuing revised guidance, and the Employed Barristers’ Committee (“EBC”) on hand to help share the experiences of those who have gone through the processes necessary to gain PTO status and to set up pupillages “split” between an employer and chambers. It is not difficult to apply for PTO status as the checklist “Considerations for potential PTOs” on p 26 shows. In addition, the BSB have made it clear that any authorised PTO can send a pupil to any other authorised PTO (provided that there is availability etc), as a secondment. Substantial secondments should be notified to the BSB. However a company can second a pupil to a set of chambers, or any one PTO can second a pupil to another PTO without requiring specific approval.


PTOs: The myths and the reality 

Myth one: The organisation must  already employ multiple barristers 

There is no such requirement. The organisation must ensure that each pupil is supervised on a regular basis by a registered pupil supervisor and that either the supervisor or another lawyer (solicitor or barrister) to whom a pupil has regular access has been entitled to exercise full rights of audience for at least the three preceding years.

Myth two: The organisation needs to guarantee to conduct litigation across different levels of court in any 12 month period

No. The organisation simply has to detail, in its pupillage programme, that it will satisfy the requirements of pupillage and both: (i) experience of trials and appearances in the higher courts; and (ii) practical experience of advocacy can be satisfied via secondment to chambers.

Myth three: They will need to be part of the Pupillage Portal Scheme (“PPS”) (formerly OLPAS) and advertise their pupillage on the PPS

No, organisations do not need to be part of the PPS. What is required is that the vacancy is publicised on the PPS website (visit www.pupillages.com) – though waivers are possible – and that pupil selection is made in accordance with an Equal Opportunity Policy.

Myth four: It is expensive to guarantee a pupil a certain income

It is necessary to ensure that a pupil is paid £833.33 per month (if self-employed) and reimbursed for the cost of compulsory training courses. The current cost of approximately £10,000 a year is applicable to pupillages at the self-employed Bar; pupillages at the employed Bar attract minimum wage legislation, meaning that £925.08 is the monthly amount. The annual amount of £11,100 is less than most employers pay even non-professional staff and can be made up of fees for work done in the second six. (Additionally waivers from this requirement are possible in part.)


The benefits for chambers

  • Gaining a better understanding of a potential client’s business
  • Familiarisation with the culture of a potential client – what’s acceptable
  • Protracted period in which to form relationships and opinions
  • Opportunities for many others to view a pupil’s work
  • Opportunities to observe a pupil’s interpersonal skills with different people.


Benefits for employers

  • An insight into the ethos of a particular set of chambers
  • A pupil honing skills that are normally obtained in self-employed practice
  • Opportunities for pupils to learn from experts in the field
  • The opportunity for pupils to improve/observe courtroom advocacy
  • An environment in which contentious/complex work is the norm.


The EBC pilot

The EBC are, in the first instance, trying to find 12 chambers and organisations to take part in a pilot. Some progress has been made but if you are interested in participating, please contact the EBC via the Bar Council website (www.barcouncil.org.uk). The website contains pointers for applying for PTO status and a small team of people are happy to share their own application experiences with you. 
The BSB Pupillage Review was published on 19 May 2010 and made 95 conclusions and recommendations covering all aspects of pupillage (see further News p 4).


Melissa Coutino is the Joint Chair of the Employed Barristers’ Committee


Considerations for potential PTOs

The eligibility requirements for becoming a PTO are set out in the BSB’s “Criteria and guidelines for applications for authorisation as a pupillage training organisation” – available at www.barstandardsboard.org.uk/Educationandtraining/whatispupillage/filedownloads
The BSB says that it will authorise an organisation as a PTO if it meets the following requirements. The organisation must:

  • have an acceptable pupillage policy document (see website for more details)
  • give details of its proposed pupillage programme, including how it will satisfy the requirements of pupillage
  • undertake to provide training in accordance with BSB guidance
  • give each pupil ready access to adequate library facilities having regard to the nature of the pupillage
  • ensure each pupil is supervised on a regular basis by a registered pupil supervisor
  • ensure each pupil will have regular contact with at least one other solicitor/barrister with at least three years’ experience of practice
  • either the pupil supervisor or the other lawyer is and has been entitled to exercise full rights of audience for at least three years

Details on advertising and funding requirements are available on the BSB website, as are the pupillage checklists. Visit www.barstandardsboard.org.uk

 

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