The third six pupillage phenomenon

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Dr Anton van Dellen and Thomas Crockett turn the spotlight on third six pupillages and open the debate on developing best practice

Seven years ago, a non-trading individual without a listed business address notoriously set up a website to charge fees to prospective barristers applying for third six pupillages. 


The press coverage at the time (eg ‘The shadowy world of third six pupillages’, Legal Week, 12 May 2009) was rightly critical, as were anecdotal reports that some barristers who had completed pupillage, but without offer of a tenancy, were being exploited. The website no longer exists, but some of the anecdotes persist. So what is the position, and what should be done about it?

Definitions

At the end of pupillage, if an offer of tenancy is not made, the barrister, entitled to full rights of audience, has a number of options:

  1. Accept an offer of tenancy from another chambers.
  2. Take up a post as an employed barrister.
  3. Remain at their current chambers, but not as a tenant, and without any security of tenure at all, in a phase rather inelegantly described as ‘squatting’.
  4. Embark on a third six pupillage, a further period either at the same or another chambers, whereby a tenancy decision may be made after a further period of practice

 

There is nothing to limit a barrister to a single third six pupillage; so-called ‘further third six pupillages’, or ‘fourth six pupillages’, are certainly not uncommon.

The third six pupil is not a tenant and, by definition, thus not a voting member of chambers. The third six pupil is therefore practising effectively as a full barrister, but treated within chambers effectively as a second six pupil.

The regulatory position

Pupillage is, with the possible exception of the Bar Professional Training Course (BPTC), understandably one of the most highly regulated areas of the bar. There are strict provisions governing the application process for pupillage, pay, rights of audience, supervision and training for selection panels and supervisors.

By contrast, third six pupillages are an almost regulation-free zone, apart from the regulations which apply to barristers in the first three years of practice (see rr S20-S22 of the BSB Handbook) and equally to full tenants, as opposed to pupillage. The Bar Standards Board (BSB) has been consistent in its approach that third six pupillages should not be regulated above and beyond the level of regulation that is imposed upon any practising barrister. It takes the view that a third six is an entirely voluntary arrangement between the barrister and the organisation concerned; and that the training delivered by the organisation (if any) does not fall within the jurisdiction of the BSB.

Accordingly, while the third six may loosely be called an extended pupillage, it should be emphasised that it is not a pupillage properly so-called, and has no regulatory meaning. The BSB regulations that apply to pupillage have no purchase; there is no obligation upon Chambers to provide funding; and although third six pupils must work under the supervision of a barrister, they need not (and commonly will not) receive the training and care allotted to pupils.

Uses and abuses

There is some anecdotal evidence of third six pupils being exploited as a cheap source of talent to service chambers’ solicitors, but without any long-term prospects. Such bad practice is outweighed by the evidence of good practice by other sets which see a period of time after pupillage as being a valuable time in which further skills and training are imparted, without the candidate being liable for rent and other chambers dues.

Examples of good practice

The Criminal Justice Reform Group’s 2015 report Criminal Justice, Advocacy and the Bar, chaired by His Honour Geoffrey Rivlin QC, offered as one of its conclusions:

‘The Bar Council should issue guidance on what are known as “Third-Six Pupillages”, asking chambers to make a decision as quickly as practically possible on whether or not to offer a tenancy to a pupil. They should not be used as a way to extend the period during which a junior barrister is working for little money and without the security of a tenancy or any voting rights in chambers. They are not part of pupillage and, being unregulated, in the absence of agreement, there are no minimum guaranteed earnings during this period.’

The Bar Council is considering such guidance, and this article seeks to elicit views from the profession. Some examples of good practice towards third six pupils, which many of those chambers offering such pupillages already observe, and which we think others will wish to consider adopting, are shown in the box above.

More regulation?

One of the interesting questions is whether this is an area that should be regulated more closely.

Clearly, the potential for increased regulation exists. In comparison to the period of pupillage immediately preceding it, the regulation is extremely light touch. There are, however, obviously clear advantages to a system whereby a barrister whose regulator considers fully fledged, is able to practise without many of the constraints imposed by regulation during pupillage.

Further, scope clearly exists for there to be a pool of barristers who complete pupillage but need to be part of a chambers for their first three years, without necessarily being taken on as full tenants. Many barristers also wish to change the direction of their work from that to which they were exposed during pupillage. A third six provides an ideal opportunity for this to occur within a more protective environment.

But the notion of a third six pupillage has the potential to sit uneasily when placed adjacent to the concept of a squatter. A squatter is effectively a third six pupil remaining in the same chambers, but understood to be without the prospect of tenancy. Clearly there is little likelihood of a squatter being afforded the educational support potentially available to a third six pupil (as outlined in the best practice example above) as well as the lack of prospects of tenancy.

Chambers can advertise third six vacancies on the Bar Council website free of charge, although there is no requirement for them to do so. Indeed many chambers advertise via their websites, in robing rooms or word of mouth (of members of chambers or their clerks).

The financial drought

The third six pupillage phenomenon also coincides with the financial pressures experienced by other new tenants. Whilst second six pupils are guaranteed minimum earnings or a pupillage award, there is obviously no such financial safety net for third six pupils. The lag in time before solicitors pay invoices can potentially mean that a third six pupil may have significant cash flow difficulties during the currency of the third six pupillage.

Whilst much has been written about the debt accumulated by barristers during the academic stage of their studies and the BPTC year, new tenants also face a severe cash flow crisis as they await their invoices being paid.

The uncertainty of tenure combined with financial pressures linked to debt is another feature of third six pupillages which remains underappreciated. These are clearly issues which any future regulation may seek to address and ones which proactive chambers can take steps to remedy in practice.

Opening the debate

Third six pupillages are an inevitable consequence of a system whereby some barristers finish pupillage and move to different areas of law or different chambers. The features of this period are a relatively light level of regulation. Properly administered, the mechanism works well, and is a benefit to chambers and third six month pupils alike.

However, whilst there is the potential for a third six pupillage to prove to be of professional benefit, the lack of secure tenancy ultimately means that this will always be a stressful time for new barristers, particularly when combined with financial pressure and historical debt. Chambers should therefore be encouraged to adopt best practice and support third six pupils as they would their pupils in first and second sixes.

The Bar Council Education and Training Committee would be interested to hear any thoughts on the views advanced in this article. Please email Alex Cisneros: acisneros@barcouncil.org.uk. We aim to distil the responses and place a best practice guide at the forefront of the Bar Council webpage on which third six pupillages can be advertised.

Both authors are members of the Bar Council Education and Training Committee. Any views expressed are the personal views of the authors.

Contributors Dr Anton van Dellen, Goldsmith Chambers and Thomas Crockett, 1 Chancery Lane

THIRD SIX PUPILLAGES: A GOOD PRACTICE EXEMPLAR

  1. Chambers recruits third six pupils using the same interview criteria, mark sheets and interviewing panel as applications for pupillage.
  2. The vacancy is centrally advertised on the Bar Council’s website at www.barcouncil.org.uk/careers/third-six-vacancies.
  3. The same equality and diversity monitoring process takes place as for pupillage.
  4. The third six pupil is allocated a pupil supervisor who is not supervising another pupil.
  5. The third six pupil is involved in all the same pupillage development and social events as the other pupils.
  6. An offer of a third six pupillage is made either with the expectation of an offer of tenancy at the conclusion of the period of third six pupillage, or as an offer simply to broaden the applicant’s experience, and is clearly advertised as such.
  7. The progress of the third six pupil is monitored by the Pupillage Committee.
  8. The clerks allocate work in the same manner as for the second six pupils.
  9. The third six pupil does not pay fixed rent, but only pays a percentage of fees, in the same manner as second six pupils, if any. The clerks allocate work in the same manner as for the second six pupils.
  10. There is a £1,000 per month guaranteed minimum earnings scheme, and chambers pays for travel expenses outside London.

 

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Dr Anton van Dellen

Anton originally qualified as a medical doctor and was a Fellow at Christ Church, Oxford, before qualifying as a barrister. His area of interest is public law and immigration, as well as general common law. He is a member of Goldsmith Chambers Pupillage and New Tenancy Committee and the Bar Council’s Education and Training Committee.

Thomas Crockett

Tom was called to the Bar in 2009 and is a tenant at 1 Chancery Lane. He specialises in cases involving professional and clinical negligence cases, personal injury and local authority liability law. He is a member of the Bar Council’s Education and Training Committee.