Secondments: still the new junior briefs?

With the criminal Bar at crunch point, Sam Roake explores how secondments might affect a publicly funded practice and Counsel grills barristers on the pros and cons of trying new waters

In 2015 I wrote that ‘for the junior publicly funded Bar, secondments have become the norm, and arguably the equivalent of junior briefs’ (‘Junior barristers get creative’, Law Gazette). More than two and a half years later, I return to that theme.

I wrote that article at a point when I realised that my publicly funded practice was no longer financially viable. My argument was that a secondment could allow you to stabilise yourself financially, whilst keeping your hand in as an advocate, with advocacy remaining the focus of your practice. I encouraged barristers to pursue a generalist approach to their practice (combining the various court/non-court opportunities), but nonetheless emphasised the particular need for a continued flexibility of approach, with a pursuit of generalism not precluding one from specialising later.

My experience following my secondment, and following that article, was that I did focus on maintaining my court practice and, for some time, I was able to do so – and indeed progress as an advocate. That trajectory is one which I saw some of my peers on too. And yet, around 2016, the situation changed.

The change came as I was able to obtain more serious fraud investigatory work away from court, which resulted from the disclosure work I’d originally done on secondment. Having invested a year or so (on and off) in that work, I’d found myself able to access more demanding instructions in the same area. I found this work intrinsically valuable; it was demanding and intellectually stimulating, with a strong public interest – aspects of work which took me to the criminal Bar in the first place. I’ve developed an appreciation for this non-court work in a way that I wouldn’t have imagined possible at the start of my practice, such that I’ve come to embrace it as a specialism.

The inadequacy of fees for publicly funded work is at the very heart of the decisions I’ve made. The effects of the new advocates’ graduated fee scheme (AGFS) regime remain to be seen, but it seems clear that those of us who appear in document-heavy cases will be worse off. Crucially, I’ve found that the paper-based practice I’ve been able to develop is significantly better remunerated than the (mainly publicly funded) work I’d been doing in court.

Publicly funded work has enormous value to society – a value which has, of course, gone shamefully unrecognised by successive governments over the last two decades (although it is hoped that The Secret Barrister’s surprise smash-hit Stories of the Law and How it’s Broken may mark a turning point in the public debate). Those who feel compelled to turn away from it will no doubt feel a very real inner conflict. But even if the decision we make is not purely financial, what follows is nonetheless a business decision: to what extent do you forego profitable work in order to pursue work which is unprofitable, perhaps even loss-making?

If it’s right that I’m by no means alone in scaling back my court practice for this reason, then clearly there are potential implications for the traditional chambers model. However, the implications are by no means solely negative. The market for white collar investigation work seems to be growing and if, as expected, ‘failing to prevent’ offences are expanded to cover economic crime more generally, the opportunities will be even greater. Whilst law firms will typically be a client’s first port of call in an investigation scenario, barristers with experience in this area will be much in demand as firms look to increase headcount and expertise on a short-medium term basis for specific projects. A chambers which can meet this demand will do well.

There are other related opportunities. At a time when the CPS is seemingly overwhelmed by its disclosure obligations, the Bar can add value there too – on often-overlooked part of their disclosure manual (at p 84) provides for instructing disclosure counsel in more document-heavy cases, and even states that ‘exceptionally large cases may require a team of disclosure counsel’ (emphasis added).

It is very much in the interests of chambers to allow their barristers to pursue this kind of work, potentially even recognising the changed nature of criminal practice by developing two streams: in court and out. Clerks’ immediate priorities on a particular day may differ from those of counsel, and the old way of working may be very ingrained. But the benefits of counsel generating significant revenue and building relationships with law firms, all whilst requiring very little-to-no clerking, are surely obvious.

And so, to conclude: do I still argue that secondments are the new junior briefs? In purely financial terms – for those who wish to return to court and focus their efforts on doing so – the answer might well be ‘yes’. But I have to say that for me things have turned out differently. Once again, I find myself concluding with the realisation that my journey as a barrister has gone in positive directions, albeit not ones I would have predicted. I suspect that I’ll find myself writing similar words again in the future.

Contributor Sam Roake is a barrister at Red Lion Chambers. (The opinions expressed here are of the author alone).

Early years’ secondments: balancing act

I took part in three secondments schemes in my first few years of practice. In my experience there are many benefits of undertaking a secondment but also some challenges.

A successful career at the Bar is dependent, in part, upon good relationships with solicitor clients and we have to work hard, particularly at the start of our careers, to build these. On secondment I was working with my solicitors closely and those relationships developed naturally and easily. I have maintained those relationships and continue to be instructed by the solicitors I worked with now. My time on secondments also helped me to understand and appreciate the work that solicitors do and the demands they face, particularly dealing with clients.

"It is very much in the interests of chambers to allow their barristers to pursue this kind of work, potentially even recognising the changed nature of criminal practice by developing two streams: in court and out"

Another positive was the quality and variety of the work. I was able to work on cases which I may not otherwise have been instructed on at that early stage in my career. I was also lucky that, in particular on my second secondment, I undertook a lot of advocacy which helped to develop my confidence in court. However one difficulty with secondments, particularly undertaking them early on, is that you spend time away from chambers and it can feel like you are not developing your own practice. The trick is, I think, all in the balance.

It is important that barristers undertaking secondment schemes are aware and consider the particular regulatory, ethical and insurance issues that apply when working on secondment. It may help to consider the Bar Mutual guide to secondments and the Bar Council Ethics Committee note on Retainers, Fee Arrangements and Non-Standard Work Arrangements. Further, you should make sure that you know exactly what the terms of the agreement with the organisation are and what type of work you will be expected to undertake.

My experience on secondments was generally positive and I would encourage those undertaking one to make the most of the experience. You never know what it may lead to in the future.

Contributor Alice Richardson Trinity Chambers, Newcastle-upon-Tyne and Arden Chambers, London.

Practice building blocks

In mid 2015 chambers circulated information in relation to a possible secondment to the Inquest Team at Capsticks. A month or so later I attended a formal interview with the team partner and a senior lawyer, shortly after which I was invited to join for a three-month secondment. I enjoyed the work enormously and stayed for around six months. I was very fortunate in that this particular secondment enabled lots of regular advocacy in the Coroner’s Court. I appeared as an advocate at Inquests before coroners alone and with juries concerning deaths in hospital, care, custody and the community. I represented NHS trusts, paramedics and individual health care professionals. The role also involved pre- and post-inquest liaison with the Capsticks’ Clinical Fatal Accidents team.

In addition to the opportunity to gain a huge amount of inquest experience in a short, concentrated period, I also had the pleasure of working with a tight-knit team (seeing the same faces regularly was something I hugely enjoyed) and the joy of time recording (probably the task I liked least – however, the realities of time targets did give me an insight into a pressure we do not share with our solicitor colleagues).

I took away a new perspective, great contacts and a desire to expand and build upon what I had learned. Upon returning to 3PB I have extended my inquest practice beyond NHS Trusts and now regularly represent private care homes, local authorities, police forces, individuals and families involved in the Coronial process. Experiences from this secondment have enabled me to advise with greater confidence on a wide range of inquest-related matters and extend the fatal accident remit of my personal injury practice.

Contributor Susan Jones is a member of 3PB Barristers in Temple, London

Overseas: sun, sand and secondment

As a pupil, I was seconded to Griffiths & Partners in the Turks and Caicos Islands (‘TCI’). I am often asked how that experience, in a foreign jurisdiction, enhanced the skills needed for practice here. The TCI is a British Overseas Territory with a common law jurisdiction modelled on the law of England and Wales. The TCI House of Assembly has the power to make legislation and in most cases, the wording of TCI Ordinances is based on an equivalent English statute. For example, the Bills of Exchange Ordinance is almost identical to the Bills of Exchange Act 1882. English lawyers are therefore well placed to understand and apply TCI law. I worked on a range of cases and in many respects, the exercise was similar to that which I undertook as a pupil in chambers. It is for that reason that TCI firms like Griffiths & Partners often instruct English counsel to advise on matters of TCI law.

Secondments provide an opportunity to network. It can be difficult to build relationships with instructing solicitors at the start of one’s career and the day-to-day exposure that comes with a secondment is therefore invaluable. It can be difficult to take time away from chambers, though, and the concern is that existing relationships with solicitors will suffer. The benefit of undertaking a secondment during (or just after) pupillage is that those relationships are often still in the early stages of development. The experience gained while away will often help, not hinder.

I thoroughly enjoyed my secondment. It was a great opportunity to develop my skills and contacts and particularly valuable at such an early stage in my career. The beautiful surroundings were not too bad, either.

Contributor Lia Moses is a barrister at Henderson Chambers

Bar Mutual extends cover for secondments

In response to the growing number of secondments undertaken by junior barristers, Bar Mutual’s terms of cover were amended from October 2017 to provide professional indemnity cover for self-employed barristers practising prior to the commencement of the secondment and for secondments lasting no longer than six months. This came into effect alongside amendments concerning cover for pro bono work.

Author details: 
Sam Roake

Sam Roake, barrister, Red Lion Chambers