What would Titian have made of a barrister? He might have depicted the infant barrister searching for an income, the junior barrister with too much work trying to turn some away and the old barrister searching in vain for an answer to the point of it all before he dies, contemplating a decomposed wig.
The barrister spends his life haunted by insecurities. I identify but three. In infancy, he or she lacks income. As a junior he or she is terrified to turn away work for fear that he or she will regret it. And at the end of it all, contemplating retirement, the senior barrister has nothing in the form of capital wealth to sell in the market place.
There are other insecurities and strains of course in 2008. Chief amongst them perhaps are the fear of a complaint, fragile relationships with clerks, fee collection and aged-debt and chambers’ politics. But how might these issues be less burdensome if the young barrister had a guaranteed income, the junior barrister could delegate his work without losing it irrevocably and the senior barrister could sell his practice or his share in it to someone else?
Value of misfortune
Perhaps the value of misfortune is the enforced creation of a vision of the present. And perhaps in its difference, it can illuminate the future for others. At five years’ call I was caught in the cross-fire of the meltdown of a London set. At six years’ call, I set up my own set. At 19 years’ call, I experienced the self-destruction of my set. These intensely painful experiences led me to the conviction that the barristers’ chambers model might well be fundamentally flawed. So in 2004, I set up as a sole practitioner (SP), despite an invitation from an established London set.
The SP model has much to commend it. It is a state of complete intellectual and professional freedom. You work where you want, how you want and when you want. But if you have to make a living from this job, this freedom brings heavy responsibilities. I expect that I work harder and longer hours as a SP than I did before, precisely because there is no sense of there being an institutional catch-net, no back-up professionally or administratively. The successful SP has to be highly motivated, highly organised and must have the mental strength to deal with self-doubt or even loneliness. But overall, the last four years have given me a fascinating insight into a different business model for the Bar. Perhaps I should call it the “Harley Street model”—consultants who practise on their own, achieve excellence on their own and are no less respected for being on their own.
In many ways, people like me practise as SPs for the very reason that the traditional chambers model has not worked for them and there seems to be no other legitimate business model. It is too glib to assert that that may be so because there must be something wrong with SPs. Those from established sets may well experience the temptation to think of SPs in that way. I am quite sure that many people would disapprove of SPs—especially those who do public access work. However, they should stop and think: why is it that so many people like me choose to practise outside of the traditional model? Is something wrong with the SP, or with the traditional model? Why does the conventional barrister business model fail to accommodate the talents and energy of so many SPs?
New chambers model…
The Legal Services Act 2007 (LSA 2007) will create Alternative Business Structures (ABSs) and Legal Disciplinary Practices (LDPs). It will be permissible to enter into partnership. Barristers may be able to conduct litigation. Outside ownership of legal practices will be permissible. Some might say that all this heralds the fusion of the legal professions. However, not only do I doubt that this will happen, I view the LSA 2007 as the potential panacea for the three career insecurities I have identified.
What I envisage for the Bar is a chambers model which begins to resemble a law firm, without losing its distinctive character and without diminishing the status of barrister or the independence of the Bar.
…for the three ages
Let me take each barrister age or stage in turn. First, the infant barrister’s insecurity is income: I suggest that the post-LSA 2007 business model should enable barristers to employ other barristers. The employee barrister would then have the security of an income. The chambers or other employer organisation would be able to bill out the employee barrister. The BSB Consultation Paper, The Legal Services Act 2007: Implications for the regulation of the Bar in England and Wales (February 2008), approves of the idea of barristers employing barristers, but it is silent on the question of the LDP or ABS billing-out the employee barrister for profit. There will be little incentive for LDPs or ABSs to employ barristers at all unless the employer can profit from the services of the employee and grow his business.
Second, the junior barrister’s insecurity is too much work and too little back-up. He should be able to employ assistant barristers to help him with his work, but without fear that the latter will simply be able to walk away with that work and treat it as his or her own. He too should be able to bill out the assistant barrister for profit. Imagine a Utopian world in which you could have a family holiday or recuperate from illness and earn some income at the same time.
Third, the senior barrister should be in a position where he is able to start a chambers, capitalise it, grow it, treat it as his business, be its salaried managing member and then sell it, or his share in it when he retires. If that means partnership or a company structure, then so be it.
Renewed life for the Bar
In the LSA 2007, I foresee not the Bar’s demise by fusion, but renewed life for the Bar in the form of new business models, which enable enterprising barristers to start new chambers, to employ other barristers within the commercial discipline of employment, to set down clear demarcations of ownership and management of the business and to have a proper, modern system of delegation of work between barristers, all operating within a framework of business ownership. And at the end of it all, the entrepreneurial barrister should have been able to leave behind him a stable commercial institution for the next generation of barristers, whilst taking into retirement the fruits of his courage, enterprise and work.
Large sets’ responsibilities
My model is perhaps not even a LDP, but a BDP—a Barristers’ Disciplinary Practice. Yet there are dangers. In the context of public access work, it will become essential that para-legal functions can be performed within chambers. The danger, however, is that if we incorporate—in both senses of the verb—barristers and solicitors under one roof, we destroy the Bar by fusion. But do we? Brick Court Chambers with two in-house solicitors will still be Brick Court Chambers. The real risk is Brick Court Chambers with 50 in-house solicitors. It is the big, established sets who owe the profession a very special responsibility to use new-found freedoms responsibly. Mergers of large sets with firms of solicitors may well become very tempting, but such mergers will surely in themselves destroy the Bar altogether. I venture to suggest that my model is one which tackles the insecurities of the Bar and ameliorates them, whilst preserving the character of the Bar as a distinct profession.
If the LSA enables the Bar to set up better-balanced business models in terms of finance, employment, administration, delegation and ownership it will breathe new life into the Bar. If in fact it becomes a charter for mindless mergers between mega-sets and mega-firms, the Bar will disappear. It would be ironic if the only “true” barristers left in 10 years’ time were SPs like me.
This is an edited version of a speech given by Marc Beaumont to the Public Access Bar Association (PABA) on 17 April 2008. Marc is the Vice Chairman of the Access to the Bar Committee of the Bar Council and the Chairman of PABA.