There have been ‘seismic’ changes in the way barristers and solicitors work together, according to both sides of the profession.
Among the key drivers identified by leading counsel and solicitors in the civil litigation world are increased competition; client pressure; litigation funders; fee arrangements that require ‘skin in the game’; and cross referrals of work. At the criminal Bar, relationships with instructing solicitors are often long-established, sometimes from pupillage. But deep cuts to legal aid can create tensions in how cases are run.
So what impact are the changes having on working relationships? These are still built on respect and trust, says former Bar Chair Michael Todd QC, head of Erskine Chambers, but with much less formality. Globalisation has led to a huge increase in the amount of work and in the numbers of lawyers competing for it. This means, says Todd, that the power has shifted to clients, who are ‘no longer in awe’ of their lawyers. ‘The expression “learned counsel” now sounds very old fashioned,’ he says. ‘When I started at the Bar, solicitors were said to be the GPs and barristers the consultants. But now we work much more closely together, rather than being out on a limb. If we were ever revered, we are now much more part of the mix.’
The scale of litigation has also changed working relationships, while technology means barristers are expected to be easily accessible. ‘Even as a Silk, solicitors now ask if I want to be copied in on everything so I can keep abreast of what is going on,’ he says.
‘Another big change is that if I have to write three opinions a year, I think I am unlucky. Most work is done on the telephone or in conference with the solicitor preparing a note which I sign off.’
Relationships have certainly become much more cooperative, agrees the current Bar Chair Andrew Walker QC, who sees his role as being part of a team. ‘You are heavily involved in setting strategy because cases are so much more complicated now with ADR and sophisticated settlement possibilities.’
David Greene, senior partner at Edwin Coe and former president of the London Solicitors Litigation Association (LSLA), also welcomes the more collaborative approach.
‘I will often get in contact early on to ask what counsel thinks about a case and we decide a way forward,’ he says. ‘But we are also much more selective about counsel. I want to ensure they add value to the package, which is usually their advocacy skills and their view of what will run in front of the court. What I don’t need to be told is something I already know.’
Alex Taylor, senior clerk at Fountain Court Chambers, says they actively encourage solicitors to call counsel in earlier. ‘These days it is not uncommon for the senior Silk in an action to be consulted very early on. Once the strategy is mapped out, there might be one or two juniors working closely with the solicitors’ team. There can be many twists and turns in the life of a case, so you need to be on top of it.’
For Kirsty Brimelow QC, of Doughty Street Chambers, half her practice is defending in serious crime. ‘I have very long relationships with solicitors, some of whom have instructed me since I was a pupil,’ she says. ‘Once you move into Silk, you are in a different pool so you do get instructed by new firms, based on your reputation.’
However, she says: ‘The old Rumpole days of the instructing solicitor having substantial influence in choosing the barrister has gone to some extent. Clients now do their own research on the internet. It’s common for clients to turn up to the first conference with a print out of my profile.’
The legal aid cuts also have had practical implications on how prosecuting and defence counsel work. Brimelow, speaking to Counsel magazine from a ‘shabby robing room where the carpet is held together by pieces of tape’, says: ‘Once a case gets to crown court, solicitors very much drop out as there is no funding for them to attend so, as counsel, you have to do a lot more running around. It can be difficult keeping a note of the evidence when you are on your feet cross-examining because there will no longer be a solicitor’s clerk taking a note of the proceedings.’
What is clear is that the growth in competition means chambers have to be proactive in marketing and business development.
But Taylor warns that building brand recognition with solicitors brings challenges. ‘We have the freedom to appear for more than one party in a case and that freedom is part of our business model. So, while you want to build brand recognition for your set, you don’t want solicitors to see you as a firm but rather as a group of self-employed individuals.’
What has happened is that counsel have become ‘much more entrepreneurial’, says Todd, in ‘monetarising’ their knowledge and using it to build contacts with law firms. In one initiative, Todd and members of his chambers work with professional support lawyers to create content for the online corporate law product FromCounsel, which they launched in 2016. ‘There is an advisory board of solicitors who tell us what they want us to produce and a growing list of subscribers,’ he says. ‘We are also beta testing a marketwatch product that will analyse deals.’
Competitive pressures mean some law firms are keeping more of the work in-house, making it hard for some junior counsel to gain experience. Todd has been visiting law firms to raise the issue. ‘These firms are going to need specialist Silks in the future but how are today’s juniors going to develop that expertise?’ he asks.
‘Some firms, particularly large US firms, like to see themselves as a one-stop shop. My own view – and I would say this, wouldn’t I – is that working with a specialist advocacy and advisory profession is in the public interest and is cost effective.’
In the pensions field, Andrew Spink QC, of Outer Temple Chambers, says solicitors and clients very often only want to use a QC. ‘I will work hard to get a junior in because I know it is a better way of working.’ In commercial litigation, he says law firms understand the benefit of having a ‘hands-on junior’. His chambers regularly send their juniors into law firms because they are a ‘relatively cheap’ additional resource.
Solicitors also increasingly want to be involved in every aspect of the barrister’s work. ‘They don’t just pass the case over and sit quietly in the back row during the trial,’ Spink says. ‘They are rightly very protective of their client’s case. I am senior enough to influence where the boundary is drawn. But for more junior Silks and junior counsel, there is lot of power in hands of the solicitors.’
"Direct access has also changed the dynamics on the civil side – solicitors who feared it would take work away now find the Bar is referring work to them"
While firms are increasingly doing more of their own advocacy, particularly in arbitrations, the global in-house advocacy unit at Herbert Smith Freehills remains a rarity. Set up in 2005 by two QCs, its current head, solicitor advocate Adam Johnson QC, says: ‘The unit was both a logical extension of our focus on litigation and met a growing demand from clients who wanted something that felt more integrated.’
However, he stresses the unit ‘hasn’t shut out the Bar’. As he points out: ‘The firm generates a huge amount of litigation work. There is no way that the unit, even taking into account the firm’s other solicitor advocates, could handle the entire work flow on our own so the vast bulk of the work is still briefed out to the Bar.
‘But my experience of working with the independent Bar is that it also wants to be integrated and involved day to day in the management of a case – rather than be parachuted in at the 11th hour – because this is what clients now expect.’
But that approach requires not just the right expertise but also the right fit in terms of personalities, with counsel increasingly being asked to take part in ‘beauty parades’ with clients. ‘Sometimes, if a law firm is pitching for a specific case,’ says Spink, ‘they will get us on board to pitch with them because the other thing that has dramatically changed the market is litigation funding. It is no longer just about being picked by the client – solicitors pick us in part because they know our view will be trusted by third party funders.’
He describes writing an opinion ‘for not very much money in the hope of getting funding for the client and thus the case for us and the law firm as a team. We were initially successful but then another law firm pitched a better funding offer to our client and off they went!’
Ed Crosse, LSLA president and partner at Simmons & Simmons, says: ‘In the past, there were times where you had to make some important decisions about a case, without input from leading counsel, because you didn’t yet have money on account from the client to pay their fees.
‘Nowadays, most barristers are more than happy to discuss the merits of a case and provide their initial views, without any expectation of payment if the matter doesn’t go ahead. In effect, you are both pitching for the job and covering the initial stages of advice on that basis. This ensures that, when you do get to instruct your barrister of choice, you can do so without that person later disagreeing with advice previously given.’
Legal aid cuts mean some law firms’ business models are more about keeping work in-house than on the quality of representation, says Brimelow. This can put the leader in a difficult position. ‘Whilst there are fantastic in-house advocates, there are some firms who will sacrifice quality for financial gain,’ she says. ‘If the QC creates a fuss over whether the in-house junior has appropriate experience, the firm could decide to instruct someone else. A lot of QCs will take the decision to shoulder the extra work rather than lose the instruction.
‘For my part, I don’t think that the client will be any less well represented but it is harder for the leader – involving working crazier hours than usual – and there must be a risk that something could be missed.’ While she hasn’t had issues over fees, she says it is inevitable that working relationships may become strained when fees are being paid from the same, much reduced, pot.
But work doesn’t only flow one way. ‘At Doughty Street, we refer direct access cases to solicitors on a regular basis,’ she says, ‘though it may still be they won’t be able to get funding for them.’
Direct access has also changed the dynamics on the civil side – solicitors who feared it would take work away now find the Bar is referring work to them. Crosse says some of his biggest instructions in Russian-related matters have been referred to him by a barrister with good relationships and a strong reputation in handling CIS-related disputes.
‘It is definitely a two-way street but it’s by no means a private club,’ he says. ‘As with the appointment of counsel by solicitors, barristers will carefully select the best firm or person for the job. For solicitors, the beauty of the Bar is that rather than being tied to your in-house trial advocates – as is often the case in the US – you can choose the very best person for the job, from a fantastic pool of talent. It’s like a game of Top Trumps – you can select the best card available, and hopefully outgun the other side by doing so.’
When it comes to fees, Greene says that, as a claimant firm, they are often pressed by clients to take on cases under some form of contingency agreement. ‘If we are, I will usually require counsel to participate on the same basis, though some won’t do that.’
Todd is one of those. ‘I think this distorts the role we play. Why should it be our skin in the game? Our job is to give objective advice, provide effective advocacy services and do the best we can for the client while recognising that our primary duty is to the court.
‘I had a case where the brief fees were agreed beforehand with staged payments. We didn’t receive any of the brief fees until the judge gave his decision three months later. Even then, because the client had lost, he didn’t want to pay everything he had agreed. Why on earth should we agree to do it on a contingency fee basis? We aren’t providing credit services.’
Working with overseas clients can raise cultural differences. Spink describes a case where he was acting for a US corporation litigating in London with a Silk from his chambers representing one of the opposing parties. ‘When the client discovered this three days before the case, they went ballistic,’ he recalls. ‘It took the London-based US law firm which was instructing me 48 hours to make them comfortable with that.’
What is clear is that relationships with solicitors are not only closer but also much more complex. As Spink concludes: ‘It is not just about whether this counsel is the best person on their feet but how well will he or she work with a large team of counsel, with the law firm team, the client and the funder.’
Contributor Grania Langdon-Down is a freelance legal journalist
One of the team
Barrister Adam Chichester-Clark and solicitor Shilpen Savani draw on their experience of working together to highlight key points that make a relationship work
Chichester-Clark, of Threestone Chambers, has a broad commercial Chancery practice while Savani is a dispute resolution partner with commercial law firm gunnercooke. The two agree that personal contact is critical.
‘When I started,’ says Savani, ‘barristers were much more aloof. But I find the best way, now, is to treat counsel as an extension of my team, though one that is independent and external. The dynamic of having someone who is a constant dose of cold water is of great value.’
The first thing Chichester-Clark does he when gets an instruction is ring the solicitor to discuss what he proposes to do and, if it is new contact, to give them his direct dial number. He will then send his advice in draft form – ‘the idea of sending fully formed advice without contacting the solicitor first is incomprehensible to me,’ he notes.
Savani contrasts that open approach with his experience of another barrister who sent a ‘very serviceable’ written opinion in a complex case without any personal contact. ‘I could persuade myself that was down to the quality of my instructions,’ he says, wryly. ‘But I think it was down to the barrister preferring a less personal interaction and I question whether the client had the best value. The barrister was very likeable when we did speak. But he missed a trick in not making my life a little bit easier while I was waiting for his advice because I had nothing to tell my client.’
He also admits with a smile that ‘the best barristers I work with don’t initially pay very much attention to my instructions. They know their purpose is to review the problems and the papers afresh and form their own view before they sit down to advise. That independence is one of the key aspects of the solicitor/barrister relationship.’