So much to lose

Examining what the Bar stands for; fighting to maintain our standards and the Bar’s independence and integrity; and the dangers of change for change’s sake brought in too quickly and by those who do not understand what is at risk

Michael Todd QC, Chairman of the Bar

In my inaugural speech last December, I encouraged members of the Bar to invest in their futures and marshal the resources available to them to secure their futures. I never anticipated that they would rush headlong unseeingly down a particular course. After all, what is the rush. The Bar as a profession has been around for some 800 years. Its reputation for ethical standards and for providing the highest quality services is second to none. It has a wealth and depth of experience in the provision of legal services, which is the envy of the common law world.

Rather, what I expected from members of the Bar (and I have not been disappointed), consistent with their high standing and reputation, was that they would have at the forefront of their deliberations the public interest, their essential role in the due administration of Justice and in the provision of access to justice. I expected them when considering how best to provide their services in the changing legal landscape, their duties as advocates and their obligations as advisers, to ensure both that the public interest and the interests of their clients are served.

It is not surprising therefore, when changes are proposed, particularly to practices which have developed over the centuries to meet the public interest, that the Bar should examine the fine detail of what is proposed, to define very detailed rules, to ensure that such changes not only are not inimical to the public interest, but that they also promote it. Such consideration is not defending a vested interest, it is maintaining our standards, employing our values.

The role of the Barrister is to examine the fine detail, to consider all the evidence, to make informed and considered opinions, to determine the course to be followed in the public interest and in the client’s interests, to advise and to proceed accordingly. That is what we do, and how we do it. And that is why we have a reputation, reported to me by a Russian lawyer when I asked him why the oligarchs liked to litigate in England, for integrity, independence, thoroughness and professionalism.

I can well understand that people outside the profession, or on the periphery of legal services provision, may find the Bar’s approach cautious, and perhaps, even at times, frustrating. But I make no apologies for that. That is the way we work. We are concerned with the interests of justice, with securing the best result for our clients. We may be seen to be risk averse, but our actions have consequences for others. Our decisions affect people’s lives. We are concerned with their futures. We must never lose sight of those responsibilities we owe to the public and to our clients.

The fact that the Bar may not be embracing change as readily, as enthusiastically or as quickly as others may wish, is not a sound basis for criticism, and, to the extent that it is any basis at all, it is hollow. It derives from ignorance of what the Bar does, how it operates, why it operates in the way it does, and above all of its values, and, perhaps even worse than that, it discloses an unwillingness to try to understand and properly to engage.

Take the new business structures by way of example. The Bar’s approach is to examine their integrity, to consider the potential for conflicts of duty and interest which may arise. The fact that such structures may be permitted by statute, does not mean that such conflicts do not arise or that they are permitted to exist. The New York Bar has rejected the notion of third party investment in Alternative Business Structures.

William T (Bill) Robinson, immediate past Chair of the American Bar Association, speaking in October at this year’s International Bar Association Conference in Dublin, for himself, but broadly reflecting the consensus amongst US lawyers, said: ‘What you need to understand is that from the US perspective, the Model Rules start and end with a focus on the interests of the client. There is a strong sense that in the ABS approach there is an inherent conflict of interest. Investors invest to make money and, as we say, “He or she who has the gold makes the golden rule”. They don’t bring a higher quality of practice or integrity.

Our Regulators talk about KPIs (key performance indicators). We talk about the interests of justice, the public interest, the interests of clients. I know to which conversation I would rather be a party.

As has often been said: “Be careful what you wish for.” If you destroy that which has taken 800 years to build, you will never be able to replicate it when you realise you that you got it wrong.

The same applies equally to law firms. Will we be regretting the demise of the sole practitioner, the high street practices? How many of us regret the takeover of the high streets by the multiples, by the supermarkets? Competition at the expense of quality.

For my part, I welcome change. I think the changing landscape for the provision of legal services brings uncertainty, but it also brings opportunities. However to ensure that the best of what you have at the moment is not harmed, change must be incremental, and, importantly, well thought through.

For, unless you are on firm ground you are likely to trip over, whether you are rushing headlong down a particular course that is, or whether you are simply walking forwards briskly.