Triumph through diversity

Max Hill QC offers some innovatory examples and pointers on how to diversify and thrive at the criminal Bar in today’s adverse conditions

As I eye the 30th year of my practice at the Bar, it is inevitable to reflect on the enormous changes to the self-employed profession. And yet, there is so much that remains the same. 

For those with the highest calibre of legal education, the Bar of England and Wales is still the place to be. As on the crowded streets of 21st century London, there are many speed bumps for the dedicated barrister to negotiate, but the journey is still worthwhile.

Easy for me to say? I have been lucky, and have benefitted from many windfalls during my time at the Bar, certainly. But there is much to celebrate for the current younger generation at the Bar, and the next generation as they contemplate the long road to pupillage and tenancy. Tenacity is required. Diversity is the key.

Snapshot of the South Eastern Circuit

My Circuit, the South Eastern, stretches from Cambridge to Canterbury, and from Norwich to Oxford. It encompasses about half of the entire practising Bar. The South Eastern is as big as all of the other five Circuits combined. There are locations at all four points of the compass where practice continues with remarkably little change in recent decades. The publicly funded Bar, which is my heartland, continues to be instructed by ‘High Street’ firms albeit some are bigger beasts than before, and the Bar continues to conduct the majority of higher court advocacy.

However, both in the regions and in London at the centre of the Circuit, professional life has been augmented in various ways which demonstrate the initiative and drive of individual members, spurred no doubt by the near collapse in central funding (through AGFS (advocates’ graduated fee scheme) or legal aid). I recognise the continuing struggle for those who practise solely at the publicly funded Bar. However, my focus in this article is to accentuate the positive, and to look at what we can do to help ourselves in these adverse, post-Brexit conditions.

New entities

And lest you think I am making this up, at the Young Bar Conference in 2013 I offered examples of what we have done at Red Lion Chambers, in London and Chelmsford, following the newly relaxed conduct rules. These admittedly took too long to arrive, but they allow the chambers structure to provide a foundation on which the criminal Bar can build a diverse and exciting future:

‘At Red Lion Chambers, we have three separate corporate entities trading under our roof: a private prosecution LLP run by one member of chambers, two solicitors and a number of paralegal staff; a training and communications private limited company run by one of our door tenants, a digital analyst and a camerawoman; and a second LLP dealing with deferred prosecution investigations.

‘All three of these companies provide contracting models allowing private individuals or companies to come to us without the need for referral via a firm of solicitors. Where legal advice or advocacy are required, members of chambers provide the service in the usual way, being instructed via the practice direction team – modern parlance for the clerks room. So the income comes to chambers and rent is levied as on any normal fee.’

How have these new entities, as adjuncts to traditional practice, fared since 2013?

The private prosecution LLP has gone from strength to strength. Because of its size, it now runs from its own premises nearby, and the barrister member of Red Lion Chambers draws a director’s salary, alongside his ordinary practice fees on which he continues to pay rent. And the LLP continues to instruct members of chambers.

The training and communications company has also expanded beyond our physical premises, but continues to provide training and seminar work for members of chambers, and an audio visual suite provided by the company remains in chambers for the use of members who wish to film lectures, conduct webinars or otherwise record and market their professional expertise.

The deferred prosecution entity has changed, in the sense that one of the driving forces behind it has left chambers to take up in-house employment in a magic circle firm.

So, two out of three ain’t bad. Red Lion Chambers has not applied a straightjacket to any of these ventures, allowing members to expand their horizons and trusting that, in the main, work will reflect back into chambers for the benefit of all. Yes, we could have dictated that these and any other new ventures would remain under central control within chambers. But would that work? The litigation cost and administration, the staff burden and the regulatory and insurance risks would all have accrued to chambers. And the far-sighted members dreaming up these new ventures might have submitted to the will of chambers, or they might have simply left altogether. It is for others, perhaps, to judge the overall success of such developments from the perspective of the chambers model, but I have always favoured light-touch control from the centre, and (I hope) an enlightened approach to diversity by members, provided the new work provides some benefit to chambers.

Accessing work beyond traditional criminal practice

But of course there is more where the examples above came from. In every corner of this very large Circuit, there are local authorities willing and able to instruct the Bar in areas beyond traditional criminal practice. Whether we consider public or private authorities, there are proceedings stretching from fly-tipping prosecutions in the magistrates’ court to disciplinary hearings at regional corporate HQs, all of which need the forensic skills of excellent advocates. This work is out there, and is being taken both by chambers working in their traditional role and by individuals under direct access. Red Lion Chambers is not alone in having many direct-access registered members, some of whom are very successful in garnering new work.

So the Bar today is, I believe, a broader church than was previously required. Barristers have all of the acumen and dedication of previous generations, but the adverse economic climate coupled with governmental erosion of legal aid means that the junior generation at the Bar expect results, and the increasing diversity of modern practice means they are naturally prone to overtures from outside the profession, whether regulators, private firms or industry, who see the value in having more in-house counsel and who come looking for the young Bar. We can no longer expect every junior tenant to stay at the Bar throughout his or her career. Nor should we. Opportunities abound for talented people. Whether through the examples I have suggested from my own chambers or elsewhere, it is up to us to retain the talent the self-employed Bar needs, whilst fostering creativity in practice.

If you or others in your chambers are contemplating diversifying in one or more of the ways I have mentioned, bear in mind there could be consequences for your practising certificate. If in doubt, see the relevant Bar Council guidance note.

Practical pointers

I firmly believe the Bar is surviving all of the changes. I have to believe, because the alternative of a criminal justice system bereft of a dedicated body of independent self-employed advocates is unthinkable. All the more so at the publicly funded Bar. It is and will be triumph in adversity.

If your set is considering innovatory steps towards a more diversified practice, here are some practical pointers:

  1. Do not abandon your core strengths in an effort to reinvent yourself. Stick to what you know, but add new skills over time.
  2. Organise like-minded members of chambers and move forward with the knowledge and consent of your set.
  3. Find out how your skills transfer: use seminars, lectures, training and networking to unlock new markets.
  4. Don’t diversify until you are ready. Remember that you will need marketing and branding support from chambers.
  5. Always check the professional rules in the Bar Standards Board Handbook.

Further information

Email: entityregulation@barstandardsboard.org.uk for information on how to form a BSB-regulated entity

Contributor Max Hill QC, Head of Red Lion Chambers

A LONG BUT WORTHWHILE ROAD

Outer Temple Chambers has set up an international law firm – now employing a solicitor to take instructions from abroad

The idea for this came in 2012. Having invested time and money in attracting niche international clients, mainly from the Middle East, we did not always want to pass them on when solicitor services were required. So in early 2013 we engaged solicitors to make recommendations on the structure of a company. The Bar Standards Board (BSB) was not then regulating entities so we approached the Solicitors Regulation Authority (SRA). Early meetings with senior officers were extremely positive; they were very keen to regulate a chambers-related entity. However, the process of becoming a ‘recognised body’ was long and difficult and there was a lot of learning on both sides. During this period we had numerous discussions in chambers on the company structure, investment, conflicts issues, shareholders and directors. In 2015 a solicitor had to be employed because the final application to the SRA required the details of the COLP. In January 2016, SRA authorisation was granted but the premiums quoted by insurers on the SRA-approved list called the whole enterprise into question. After speaking to Bar insurers we applied to the BSB for regulation which was relatively straightforward. We then found that the Bar insurers would not insure the company and we were forced on to the open market. After three years of work Outer Temple International is now set up, insured and trading.

Christine Kings, Director, Outer Temple Chambers

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Max Hill QC

Max was Leader of the South Eastern Circuit 2014-16, and Chairman of the CBA 2011-12. Head of Red Lion Chambers since 2012, he is also Chairman of the Kalisher Trust and a Bencher of Middle Temple.