Tough Love

junepaperheartSam Stein QC lays out the Bar Standards Board’s position regarding the awarding and conduct of pupillages and sets down the basic rules  with which all chambers must comply.

The vast majority of practitioners enjoy their work and would not do anything else. The vast majority of practitioners are probably not fit to do anything else.


Equally the vast majority of practitioners remember their pupillage with happiness.

The simple days of the pupil being sent out to find their pupil master, as he (invariably it was a “he”) was then called, and pulling him from the warmth of a pub to see a client in conference to say “tell me how you see it” to the client are now gone.

Pupil recruitment and pupillage quality need to be of the highest standards

Practitioners will be well aware of the changes that have taken place over the years to the way that we select pupils and train them. In a world in which there are eight times more applicants for pupillage than there are pupillages available, recruitment practices and the quality of pupillage training must be of scrupulously high standards. If as a profession we fall short in these respects, not only will we have been grossly unfair to all those who have invested heavily to try and achieve their career ambition, but we will also have jeopardised the good name of the profession. We will have failed to ensure that the high standards of the profession – which are its “unique selling proposition” in a competitive marketplace – flow through to the next generations of barristers

Recruitment bias is totally unacceptable

It is therefore wholly unacceptable to recruit an applicant for pupillage on the grounds that they have connections with a member of Chambers or because Chambers want to accommodate a request from an important business contact.  Getting pupillage should never have been about class, race, sex, school or university background or simply who you know and if nothing else the sheer numbers of applicants for each place emphasises that there must be fair competition. It is for this reason that the Bar Standards Board takes so seriously the need to ensure that the rules surrounding the awarding and conduct of pupillages are effective and pragmatic and monitors the implementation of theses in practice to ensure that they are delivering the outcomes they seek to deliver.

The Bar Professional Training Course (BPTC) is supplied by nine providers operating on eleven sites. They produce about 1700 BPTC graduates a year. Each pupillage round has roughly 5,000 applicants for about 500 places for pupillage.  Some BPTC graduates seek pupillage for several years, and each year, the back log of previous years’ graduates increases.

The Pupillage Sub-Committee

The present system is regulated by the Pupillage Sub-Committee and other regulation is shared amongst other committees of the BSB.  It is likely that all pupillage regulation will be brought under one umbrella. The membership of the Pupillage Sub-Committee is shared by a broad range of practitioners as well as lay members. The work we do is simple; where there is cause for concern regarding any aspect of pupillage, or recruitment that has taken place for a pupillage placement, the committee will investigate those concerns. This investigation takes place by  way of a visit to the Authorised Training Organisation (ATO).

Visits to Authorised Training Organisations

Visits to ATOs are always conducted using experienced members of the committee to interview and report on the recruitment process so that an understanding of the procedures adopted can be obtained and a report drafted setting out (if any) the concerns found. These visits normally consist of 2-3 hours at the ATO although some take considerably longer. Drafting the report will also take a great deal of time and attention to detail. Our procedures are that this draft report is then sent to the ATO for any corrections as to fact and the matter is then considered by the committee.

Typically where there is cause for concern it will be about the process of recruitment: either there appears to have been a manipulation of the system to ensure that a specific person appears to have been chosen as the pupil or the procedures adopted have fallen short of the standard required by the Code of Conduct and the recruitment guidelines.

The examples ATO A and ATO B (shown left) illustrate the process well and also show how this can leave open the question of what to do about the pupillages being undertaken by existing pupils, or offers made to prospective new pupils who have come through a non-compliant recruitment process. In many cases, the pupil will not necessarily be aware that they were recruited unfairly – and indeed it may well be that they would have measured up favourably in a fair recruitment process. But in other cases, we may have a suspicion that a pupil was party prix to the unfair process – and in some of these cases that they did not measure up on paper to the stated recruitment criteria and/or to comparison with seemingly better qualified and more experienced candidates who were rejected for interview let alone for selection.

In these cases we need to balance the disadvantage to the existing pupil that will be caused by cancelling their pupillage, against the disadvantage to the many who had lost out in an application whose outcome in favour of another had been predetermined. In short, inappropriate pupillage recruitment and training practices can destroy ambitions and careers. It behoves us as a profession – and not just BSB as a regulator – to take the dimmest view of those who create such misery for the undeserving. The ATO in case B will be the subject of a further visit in the future.

Removal of ATO status and the consequences

As you can see from the examples it is possible that the Pupillage Sub-Committee can remove the training status of the ATO. This will normally mean the termination without qualification of any pupillage at the ATO. It is also likely to mean that the responsible ATO member will be the subject of a report to the Complaints Committee of the BSB so that they can evaluate and take action if necessary for any code of conduct breaches. Have we ever done this? Although rare, this has occurred on a few occasions where the committee have found blatant breaches of the code of conduct. This is a difficult decision to make. The members of the ATO if found to be at fault can be said to have put themselves in jeopardy knowing that the consequence may be a possible disciplinary breach and a complaint to the regulator.

The pupil?  Desperate to obtain a pupillage in a terrifyingly competitive market-place he or she all too often has little free choice over where they obtain their training. Sometimes we may have a suspicion that the pupil may have had knowledge of the “fixed” nature of the pupillage offer but suspicion is insufficient and we mostly find ourselves taking the side of the pupil and looking at the problem from a “no fault” perspective. The issue breaks down into two arguments; the effect on the pupillage and the fact that no fair recruitment procedure has been adopted and hundreds of candidates for the position have been denied an opportunity of obtaining their training.

So what is the end result of this entire endeavour? Ideally we hope that the profession understands that now more than ever we need to show that the Bar is fit for operation in the 21st Century and that its recruitment procedures can rival anything that is found in other professions or in industry. Without this assurance in place other organisations and government departments will hesitate to enter into contracts with us and we will continue to be regarded as elitist and perceived to be populated by barristers who have got in because of who they know. Hence the need for “tough love” if the Bar is to survive and thrive in the future.

In the end the message is simple; the rules are there for a good reason and are there to be followed.  It goes without saying that the pupil will receive a better pupillage if a structured approach is followed in training.  The above are a few points that might help.  However, do remember that the BSB is there to clarify any points that you are unsure about: do contact them if any clarification is required.

Pupillages reviewed

ATO requirements
The pupillage period itself and the standards required of an Authorised Training Organisation, a pupil and pupil supervisor were the subject of a recent review chaired by Derek Wood CBE QC. Things must change and in particular the following should be noted:
the minimum amount that pupils must be paid will be increased from £10,000pa to £12,000pa
pupil supervisors will have to undertake longer, and more rigorous training
standards that pupils should attain on completion of their pupillages will become more defined
recruitment procedures will be monitored more rigorously to ensure that fair process has been followed by the ATO

Sam Stein QC is a criminal practitioner and Chair of the Pupillage Sub-Committee

Rules

  • Do not recruit except through a fair and open selection process within the recruitment timetable.
  • Ensure that pupillage vacancies are placed on the designated Bar Council website.
  • When considering applications filter them using a set criteria and marking system that applies equally to them all.
  • During the interview process ensure that the applicants are seen by a panel [of no less than two] and that there are set questions and a consistent marking criteria.
  • An ATO must ensure that at least one member of the panel has received equality and diversity training.
  • Ensure pupils are paid at least the minimum funding amount stated in the Code of Conduct.
  • Pay the pupils from a chambers account and record such payments.
  • Pay for the pupils to attend compulsory education courses.
  • Use the checklist as a guide for the pupillage ensuring that there are regular reviews of progress.
  • The pupil must have frequent contact with their pupil supervisor and be able to communicate with them on a regular basis.
  • Set aside time and give your pupil feedback on the work that he/she has done.
  • If possible arrange for advocacy training to be conducted in house.
  • Ensure that if the pupil’s practise is going to be court based then they spend some time in the courts where they will work in their second six.

ATO A: Did its best to follow procedures but gave disproportionate weight to less relevant and more subjective matters. Gave a wide variance in marking and failed to carry out any audit of its systems, such that there was no appreciation of this distortion and therefore its effect. Report analysed these problems and recommended that this ATO make corrections as to its recruitment criteria, consider Equality and Diversity training for its Pupillage Committee members and conduct analysis post recruitment in future.

ATO B: Appeared to operate without any true understanding of the need to comply with fair recruitment procedures. The Committee considered very carefully the question of whether this ATO should have its training status removed but decided on balance that although this ATO had certainly been negligent in failing to follow the procedures, there was no finding of deliberate manipulation of the system and that therefore the chambers could retain its ATO status as long as they demonstrate to the regulator that their procedures have been totally revised.

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