This article describes my experiences of establishing a new-generation barrister model which can afford opportunities that a traditional chambers may struggle to deliver.
Forging a singular identity
Unlike many chambers where individual practitioners have different practices and disparate interests, an authorised entity can forge a focused singular identity which highlights the specialist barrister services on offer. In the case of Bright Line Law, the areas of practice are advisory, advocacy, litigation, policy and strategy services in corporate crime and financial crime cases. Typically, these cases involve bribery and corruption, economic sanctions, fraud, money laundering and proceeds of crime. Instructions cut across traditional delineations between criminal and civil jurisdictions, and the entity’s identity is defined by the substance of the issue which has arisen and not the criminal/civil nature of the court in which the issue will be determined. The emphasis rests on advisory services with consensual and practical outcomes, although if resort to court becomes necessary as part of an offensive or defensive strategy, this is ‘meat and drink’ as an integral element of barrister services. The development of a good website, organising events and meeting people both inside and outside of the legal profession as a barrister with a broader identity is fundamental to the establishment of a specialist identity.
Modernising legal practice
A BSB authorised entity can be used in a variety of ways. The simplest option, if it suits a barrister’s practice, is to continue in practice as a member of an established set of chambers, with the barrister’s cases processed through the clerks, but in the name of a company and not the barrister in his self-employed capacity. An alternative model, which is the one Bright Line Law has adopted for most of its work, is for a barrister to operate independently from chambers. An administrator can be employed to perform the administrative functions, or the barrister can undertake some or all these functions in person.
By working through an authorised entity, a practitioner can deliver full barrister accessibility, which involves dealing directly with professional referrers and public access clients. The discussions must be clear and frank, with an unambiguous understanding of the work required, the timetable and the fees to be charged. Clarity is essential, and the rules established by the BSB around the acceptance of work provide a sound framework for these critical aspects of barrister practice to be delivered. Some barristers have opted to be regulated by the Solicitors Regulation Authority (SRA), but for me the barrister kitemark is important. Independence and the ability to offer bespoke solutions in complex and challenging cases remains at the core of barrister practice.
Experience during the last 12 months indicates that both professional referrers and public access clients welcome the ability to speak directly to, and/or correspond directly with, the barrister they wish to instruct, or if not available in the first instance, a qualified lawyer who has a good understanding of legal and practical issues which are likely to arise in their case. Direct contact facilitates the acceptance of instructions by enabling a swift response to enquiries. Having a direct involvement with the sending of fee notes is time-consuming, but the response is most encouraging. Whether or not an administrator or bookkeeper is employed, few professional referrers or public access clients wish to fall out with their barrister over late payment of fees.
Associates, litigation and other advantages
This brings me to another advantage of practising independently through a BSB authorised entity. Whilst there are an increasing number of senior practitioners who personally employ junior barristers, often pre-pupillage, either full-time or part-time, to assist with the running of their practice, this is more transparent when the senior barrister works through an authorised entity. Solicitors’ firms are driven by an army of associates and senior associates who sit below the partners. Whilst there are clear historical differences between the way in which high volume work is undertaken in a firm of solicitors and a smaller caseload is handled in a set of barristers’ chambers, the advent of public access to barristers and more particularly the right to conduct litigation is changing the landscape. At Bright Line Law, associates assist with research and case support where permitted. They also gain first-hand knowledge of practice development and contribute to the writing of briefing notes on topics of key importance which assist in building the entity’s identity in a competitive market. These can be posted on the entity’s website and circulated on social media.
The authorised entity model works particularly well in public access cases, especially where the right to conduct litigation is contemplated. The ability of barristers to send correspondence and conduct litigation has widened significantly in recent years. This is not to replicate a solicitors’ practice by the back door, but unquestionably cases arise where barristers can deliver advisory and advocacy services more efficiently through a ‘one-stop shop’ arrangement. Alongside the conduct of litigation, public access affords barristers the opportunity of initiating barrister-led litigation, where a barrister works with a public access client to assemble a team by on-boarding a firm of solicitors, accountants, investigators, and media consultants, as the demands of a case requires. For barristers, this represents a delicious opportunity to reverse the traditional arrangement by recommending the most appropriate firm of solicitors for the case, and sensible solicitors will recognise that barristers undertaking public access work present a good opportunity for obtaining instructions in a collaborative way. Barristers undertaking public access and litigation work are not competition for solicitors but rather potential collaborators, especially in large litigation cases. The prohibition on barristers from receiving payments for fees on account is a complicating feature, notwithstanding the Bar Council’s efforts to put in place the BARCO scheme to assist in this regard.
An important caveat
The contribution which associates can make to a barristers’ practice, especially in public access and litigation, is significant, but it is subject to an important caveat. At all times, great care needs to be taken to ensure that no reserved activities within the meaning of s 12 of the Legal Services Act 2007 are undertaken by anybody other than a barrister authorised to practise in England and Wales with a current practising certificate. The BSB rules are narrower than the equivalent rules established by the SRA for application in solicitors’ offices. This is an aspect of the new framework which the BSB may wish to consider in the future, especially where foreign legal associates who have gained significant practical experience in an equivalent common law jurisdiction are concerned.
The operation of an authorised entity affords an excellent opportunity to recruit a pupil who wishes to specialise in corporate crime and financial crime cases. Whilst undertaking the period of pupillage, the pupil can be employed as an associate or senior associate if they are already an experienced common law practitioner from a foreign jurisdiction, and throughout their time with the authorised entity they will be exposed to the detail of a barrister’s work. In this way, a pupil gains important experience which equips them for specialist practice at the Bar. As with other regulatory requirements, great efforts must be made to ensure that the BSB’s requirements for the delivery of pupillage are met. This includes opportunities to learn about advocacy as well as ‘hands-on’ experience with cases under supervision. Bright Line Law is an approved Pupil Training Organisation.
"For barristers, this represents a delicious opportunity to reverse the traditional arrangement"
Barristers and the public narrative
Further, an authorised entity presents an ideal vehicle for making a wider contribution to the community, if a barrister is minded to do so. With this in mind, The White Collar Crime Centre has been established by Bright Line Law to explore the developing engagement between criminal law and corporate misconduct, and to contribute to the public narrative in this area. Much of the work, which is non-reserved, is undertaken by Bright Line Law’s associates and senior associate, in collaboration with some external lawyers with an interest in the area. The Centre has already produced briefings on aspects of the Criminal Finances Act 2017 and the Money Laundering Regulations 2017, and was acknowledged in Parliament for its contribution during the passage of the Criminal Finances Bill.
Regulation, indemnity insurance and HMRC
As a newly established mechanism for provision of barrister services, there are a raft of BSB regulatory requirements to be satisfied, especially when an application for authorisation is made. The list is formidable, but fully understandable, and extremely useful for the uninitiated who do not have a pedigree in business and office management. Email is the BSB’s preferred method of communication, and in my experience the BSB staff have been very helpful. The Bar Mutual Indemnity Fund was also very supportive. Indemnity insurance had to reflect the change from self-employed barrister to employed barrister status, and the Bar Mutual kindly facilitated cover during the intervening period between the date when the BSB authorised the entity and the date when practice as an employed barrister began.
Income and corporation tax implications flow from the change from self-employment to barrister employed by an authorised entity, and unless knowledgeable in taxation matters independent advice ought to be taken. VAT registration needs to be switched, and HMRC’s procedures are protracted. A formal cessation of practice as a self-employed barrister needs to be processed, with a new VAT registration of the authorised entity to follow the next day.
Onwards and upwards
There is a strong appetite both domestically and internationally for modern and agile barrister services in the areas of corporate crime and financial crime. Bright Line Law was recognised in the Financial Times Innovative Lawyers Awards for Europe and I was pleasantly surprised to be included in the list of the top 10 innovative lawyers. All in all, a good first year and I’m very pleased I took the initiative.
In next month’s Counsel
A special focus on the different ways we work now at the Bar, from the evolving relationship with solicitors, doing joint pitches to flexible working weeks.
Contributor Jonathan Fisher QC, Bright Line Law Services Ltd, an associate member of Red Lion Chambers, and a Visiting Professor at the LSE