The Bar Council Ethical Enquiries Helpline is receiving a number of calls in relation to disputes about leaving or joining chambers. As a result of the pandemic there is an increased level of movement, with individuals or groups of practitioners splitting, joining other sets or setting up new chambers. There are also anecdotal reports that, having worked remotely from home over the last year, some question what benefit they actually derive from chambers and are contemplating becoming sole practitioners. These decisions do not always go smoothly and despite our self-employed status, the overall provisions of the chambers’ constitution are more important than ever.

The difficulty for those at the Helpline is that the issues raised aren’t generally ethical issues and they have no formal guidance to give. Moreover, the Bar Standards Board’s Handbook has not previously had to address this issue and is of marginal assistance. The nearest it gets is the rule that chambers must be run ‘competently and efficiently’ (rC89) and ‘barristers must take reasonable steps to ensure that the affairs of their chambers are conducted in a manner which is fair and equitable for all members of chambers...’ (rC110 4.1).

Support in resolving disputes

The good news is that help is available to resolve many of the issues which commonly arise. Many of us have been blissfully unaware of the Bar Council Appointments Service, under which the Chair of the Bar can appoint a barrister as an arbitrator or mediator. The Bar Council runs an ongoing open recruitment process for barrister volunteers who are willing to assist in the resolution of chambers disputes on a pro bono basis and currently has an impressive list of around 40, including silks and juniors with a commercial or chancery background. The service is facilitated by the Bar Council’s Services Team and is free to use for those who have paid the voluntary Bar Representation Fee.

There are no hard and fast rules about whether to choose arbitration or mediation. Arbitration is probably better for financial disputes as all matters are dealt with in writing and it is therefore quicker. On the other hand, experience shows that there is more flexibility in mediation and more room for creative outcomes. Mediation is also probably a better route for disputes where both parties intend to remain in chambers post resolution.

Is your chambers’ constitution fair and equitable?

However, the starting point should be that the answer to most disputes is first to consider and then apply the terms of the chambers’ constitution, a document which may not have seen the light of day for many years, often with no consideration or review of its terms since it was first written. Members are discovering that the terms of the chambers’ constitution are themselves outdated, onerous and unfair in their application.

Many chambers still do not have any form of constitution and have thrived without one for years. On the other hand, it is estimated that over 70% of chambers with a constitution have one based on the old Bar Council model. If so, it is likely to be ‘fair and equitable’ in its terms and importantly, it should contain a mediation/arbitration clause.

Whether or not there are seismic rumblings within your chambers, there is a compelling case for a review of the chambers constitution to check that it remains ‘fair and equitable’. Many were drafted in a different era and are too long and too complex. One example which came to light recently related to the constitution of a chambers which was formed when two separate sets merged many years prior. On review, huge chunks of the constitution related to the breakdown of the relationship and were therefore obsolete and could be deleted. The guidance is, as always, to keep it simple and check it contains a mediation/arbitration clause.

Issues to keep in mind

In relation to joining and leaving chambers, feedback from those at the Appointments Service identifies issues to have in mind when reviewing your constitution. For example, it is unrealistic to expect a pupil who is offered a tenancy to examine the constitution and try to renegotiate its terms. Could its terms be fairer to those joining chambers? Can chambers afford to provide better support and assistance to those in their first years of practice, for example through the provision of incremental fixed/percentage contributions and the inclusion of secondment, parental leave or similar exemptions?

In relation to those more senior barristers joining from another set, paying rent and clerks’ fees at both chambers is always going to run a significant risk that it may create bad blood. It is good practice for the new chambers to relax the rules on payments for a period, particularly in relation to any fixed fees. Good chambers will work collaboratively with the old set, taking over chasing the aged debt while ensuring that the barrister accounts fully to their old chambers for any rent or clerks fees due on that work.

The notice period for leaving chambers is another perennial problem. The requirement for notice is uncontroversial, but what period is ‘fair and equitable’? Three months is normally reasonable to protect the interests of both parties. There may exceptionally be a business case for a longer period if the chambers are small, financially vulnerable or heavily committed. However, experience shows that notice periods of six or nine months are difficult to administer, too long, too restrictive and cause confusion. Access to emails and the chambers server, and data protection issues, are also linked to this issue of notice and need careful thought. In all cases, chambers will ideally be prepared to be as flexible as possible.

Another potential problem, particularly impacting those in their first years of practice, is the retention of cases in the diary by the old chambers which forces the departing member to hand back work that they hold in their own name. With some exceptions, the advice to the old chambers is to avoid this; in most cases the work is comparatively minor and more important to the barrister than it is to the set. Chambers should let the cases go with the respective barrister/s, remembering that chambers will still receive the fees due and that holding on to instructions is often entirely unnecessary.

Constructive communications

Lastly, I want to pass on some wisdom to those planning to leave chambers. It comes from two impeccable sources, Carolyn Entwistle, Director of Services at the Bar Council, and Tony McDaid, Chief Executive and Director of Clerking at No5 Chambers.

If you are planning on leaving chambers, take control of the narrative and plan your departure. Prior to giving notice, take a copy of your aged debt, your diary and your professional clients contact details. Ensure news of you joining another chambers comes from you and not from gossip or the website of the new set. Be mindful of your conduct on departure, as it is easy to cause upset. Beware of bad-mouthing your old chambers even to those you believe are discreet; it is never helpful. Do remember your clerks and the staff you leave behind, as they may not know why you are leaving, and these personal relationships are important. They’re often not the cause of your departure, so thank them.

Chambers should conduct an exit interview if the circumstances allow. Once a barrister has decided to move on, it is in everyone’s interest to facilitate that move as swiftly and smoothly as possible, regardless of how disappointing that news can sometimes be. When the dust settles, try and arrange an interview with the departed member and get some feedback. Have a constructive conversation about how chambers could possibly be improved. Maybe this is not so important if a member of chambers is leaving to go on the Bench, but it’s very important if the barrister is leaving the Bar altogether and could ultimately help improve the future recruitment, progression and retention of members.

There are very good reasons why the chambers model has lasted for so long and it’s easy sometimes to forget the support, camaraderie and guidance we have all received. Ultimately, the words ‘fair and equitable’ must be central.