The Chairman of the Bar, Nicholas Green QC said that the Bar’s lower overheads gave it a competitive advantage over solicitors. This would give the Bar an advantage when bidding direct for contacts from local authorities, and in the future, tenders for direct contracting
with the Legal Services Commission. The 2009 changes to the Bar Council Code of Conduct allowed barristers to carry out much work
that had been previously restricted to solicitors. This will enable chambers to bid to cover either the full work in a contract by members of chambers, or to bid for the contract and then subcontract aspects to solicitors and others such as police station agents. Patricia Robertson QC explained the range of business structure options: Legal Disciplinary Practice; Barrister Only Entity; Alternative Business Structure and Multi-Disciplinary Practice. She also discussed ProcureCos. She encouraged barristers and chambers to consider carefully what they want to achieve and to select the model that would be most suitable to achieve it.

The Chairman of the Bar Standards Board, Baroness Deech DBE, said that the BSB were consulting the Bar about potential future changes. Any changes needed to retain the special nature of the Bar’s independence, primary duty to the court, cab rank rule, and deserved reputation for excellence. Initial results showed that 67% of barristers wanted the BSB to be able to regulate new business structures and 84% of barristers wanted to be regulated by the BSB in preference to any other regulator.

James Thorne, partner of Farrer & Co, predicted that over the next five years there would be more mergers and acquisitions amongst solicitor firms, and there would be more movement between the professions as barristers saw the attractiveness of the partnership model. There would also be more entrants by well funded corporate bodies offering legal services, with a consequent reduction in the number of high street firms. This would mean that there would be fewer firms to instruct the Bar and an increased use of block contracting. Professor Stephen Mayson, Professor of Strategy and Director of the Legal Services Policy Institute, predicted more bodies offering a combined litigation and advocacy service, with the potential downside of reduced choice of advocate for the lay client. Chambers considering forming procurement companies should be aware that this would bring them into direct competition with large law firms who were currently ahead of chambers in terms of: investment in technology; using non-lawyers for work where a lawyer is not needed; expertise in business management; and swift decision making. Chambers would need to change in order to compete in those areas.

Lunchtime seminars were well attended, with 80 delegates attending the seminar by Nick Avis of Place Campbell on tax matters affecting alternative business structures.

The afternoon Criminal Workshop was led by Mark Lucraft QC, Paul Mendelle QC and Anthony Shaw QC. They discussed the recent
cuts to criminal legal aid, and the options available to barristers should further fee cuts be proposed. They also discussed the relationship
between self-employed barristers and the Crown Prosecution Service. This had been an area of tension due to the increase of in-house advocacy, but the Bar Council were now in constructive discussions with the CPS and a way forward was expected to be found.

The Civil Workshop was led by Robert Latham and Martin Seaward. Discussion included Lord Justice Jackson’s proposal that conditional fee agreements (CFAs) be changed so that the claimant becomes liable to pay the success fee and for the maximum CFA uplift to be 25%. The initial purpose of the 100% maximum uplift for CFAs was to enable the fees from winning CFA cases to balance the zero fees from losing cases. Delegates expressed concern that a 25% maximum uplift could make CFAs uneconomic, with a consequent detrimental effect on access to justice.

The group then discussed contingency fee agreements, also known as damages based agreements. In contrast to conditional fee agreements (which are a percentage uplift on normal fees), contingency fee agreements are an agreement to receive a percentage share
of the amount recovered. Previously, only solicitors were permitted to conduct cases under a contingency fee basis and only in noncontentious business (Solicitors Act 1974). Now, the Damages-based Agreement Regulations (2010) make it lawful for barristers to undertake employment tribunals on a contingency fee basis. However, there was debate as to whether this should be expressly permitted by the Bar Council Code of Conduct. The majority at the workshop felt that there should be a level playing field for both barristers and solicitors. Martin Seaward, Chairman of the Bar Council’s CFA Panel, stated that it had been agreed that guidance should be produced in the event that barristers wanted to enter into contingency fee agreements. He asked delegates whether such guidance should have disciplinary sanctions if not followed. Delegates agreed that it should. The Family Workshop discussed how the Family Bar might utilise
new business structures both to increase their market share and to contract directly with the Legal Services Commission in the future. Some concerns about ‘ProcureCos’ and other new business models were discussed, including the fear ofchambers being seen as another firm of solicitors, and the need for specialist input to help chambers to develop theinfrastructure to be able to bid for contracts and to support the litigation component of contracts. Delegates agreed on the importance of the Family Bar considering collectively how ‘ProcureCo’ might be developed to suit the Family Bar. Whilst it was agreed that the referral model was very good for both the public and to ensure access to justice, it was necessary for chambers to have additional flexibility to respond to rapidly changing markets. Stephen Cobb QC emphasised that the ‘f word’ is not ‘fusion’, but ‘flexibility’.