A United Bar

Melissa Coutinho reports on the Employed Bar Conference.

Hogarth’s painting of St Paul’s impassioned plea before Felix in the Old Hall at Lincoln’s Inn provided a fitting backdrop to the Employed Bar Conference on 21 July entitled “One Bar – thriving by Unity.”


Both Desmond Browne QC, the Chairman of the Bar Council, and Baroness Ruth Deech, Chair of the Bar Standards Board (“BSB”) (both pictured above), made impassioned pleas for the employed and self-employed Bar to join together in dealing with the issues which face the profession.

Desmond stated quite clearly that we are all from the same professional planet, all being “independent” – facing similar ethical issues and that we would all be treated equitably. He did acknowledge some tensions between some sectors of the employed and self-employed Bar, such as criminal practitioners in the Crown Court being in competition for the same work, thanks to the growth of the number of people doing Higher Court Advocacy. He asked that both the employed and self-employed Bar remain vigilant that quality in both preparation of trial work and advocacy did not slip, given the vulnerable clients who rely on public funding. He noted that there is a chronic shortage of pupillages and the employed Bar had its own role to play in addressing this. He concluded with an exhortation to participate in the Bar Conference in November, as there can be no unity without involvement.

Baroness Deech speculated that the arrival of new legal structures may increase the numbers of the employed Bar as employment status was no longer a barrier to particular work being undertaken. However she confirmed that the BSB would remain the regulator for all barristers wherever they were and felt that what would unite the Bar would be the collegiality of the Inns, the Bar’s distinctive ethics and their unique skills and ability to advise.

Pupillage concerns

The closing plenary was a pupillage forum chaired by a distinguished panel of Desmond Browne QC, myself, Patrick Walker, Stephen Collier and Louise Fluker (previous  Chairs of the EBC). Stark figures revealed while the employed Bar makes up 20 per cent of the practising Bar, it provides less than 10 per cent of pupillages.

The reason that the employed Bar is not pulling its weight in the pupillage stakes appears to be a combination of factors:

  • Firstly, ignorance or belief in genuine difficulty with meeting necessary requirements to become a Pupillage Training Organisation (“PTO”); many of such views are out of date with recent rule changes, as we will convey in a future article in Counsel.
  • Secondly, economic reality. With 1,700 completing the Bar Vocational Course without getting pupillage, and 280 who do complete pupillage, not getting tenancies, there are paralegals and qualified barristers to be picked up without spending on any training. With an economic downturn the potential to have keen and competent people to work for £10,000 a year was an advantage that many employers had not picked up on.

There were many very experienced people who did not understand the BSB’s rules and accordingly had stopped being pupil supervisors. It may be that either greater understanding of the work that the employed Bar is permitted to do, and a need for more of the employed Bar to understand what was possible in terms of obtaining PTO status and becoming a pupil supervisor, is necessary.

Addressing the issues

This was an exciting conference which addressed many of the issues which face both employed and self-employed barristers and the employers and members of the public whom they serve. The presentations and discussions were of an excellent standard – well structured, clear and occasionally passionate.

Melissa Coutinho is the Joint Chair of the Employed Barristers’ Committee

 

The four workshops

Judicial appointments

This workshop covered strategy, skills and professional standards for judicial office. It was presented by Mark Emerton, joint Vice-Chair of the EBC, and Tony Bellringer from the JAC. Mark gave an overview of the appointment process from his personal experience. In addition to providing a real insight into judicial office from someone with experience, he also shared useful tips on how those interested in taking judicial office can step onto the ladder. Tony talked through in detail the various stages to the appointments process, and stressed the goal of the JAC to widen the pool of applicants.

Ethics and conflicts of interest for employed barristers

This was very much a joint effort between Judith-Anne MacKenzie (of MacKenzie & Phillips: Textbook on Land Law), and Nina Barakzai of the Commerce and Industry Group. Fiona Fraser, Co-Vice-Chair of the EBC, gave this workshop context by explaining that working under a contract of employment and working to a professional Code of Conduct did raise some interesting dilemmas. That said, the Code of Conduct was a professional code that was ignored at the risk of disciplinary sanctions.

Nina Barakzai gave a theoretical overview of how conflicts could arise and how these should be dealt with. Judith-Anne MacKenzie gave a number of practical examples, from her own experience and from colleagues who had been placed in invidious positions. Happily, her solution to each dilemma raised was self-explanatory. There was a helpful reminder that when difficulties arise where the answer is not obvious, the Bar Council runs an Ethics Helpline (tel: 0207 611 1307 or e-mail: Ethics@BarCouncil.org.uk).

Mediation

Patrick Walker, Co-Chair of the EBC (pictured far right), was assisted by a team of actors who enlivened the proceedings with a dramatic role play which focused the attention of the audience. Patrick, a mediator himself, explained the process of a mediation and explained the basic dynamics which underlay the positions that the parties adopt. He emphasised that the same dynamic applies to both private and commercial situations and often once the commercial or legal veneer is stripped away, the basic driving forces of pride and a desire to win are exposed; it is at this stage it is possible to broker a deal that is meaningful to both parties.

Getting to a stage where the parties can appreciate the others’ point of view is an important objective for a mediator. With appropriate management of expectations settlements are possible. The benefits of avoiding the risk of increased costs and delay inherent in litigation is often a mindful reminder for clients and this cost and time effective solution is gaining in popularity with courts themselves becoming more insistent that the parties explore matters by mediation.

Advocacy

This session, chaired by myself (pictured above), focused on training for the future with a wider perspective. It was run in response to delegates at a previous EBC seminar who had called for the EBC to champion more relevant advocacy training for the employed Bar. I explained that after a dialogue with the Advocacy Training Council, the EBC has been tasked to identify “the right training for the right people” so that the Inns could offer more tailored training; especially on the New Practitioners’ Programme. The EBC is devising and collecting examples of employed Bar exercises to complement the ethics questions and the advocacy exercises which have already been piloted by Middle Temple. Stephen Leslie QC, leader of the South Eastern Circuit, emphasised that the Circuits’ advanced advocacy course, held each year at Keble College, is open to all and that some members of the CPS had signed up for 2009.

Christiane Valansot, Chair of BACFI, and Jonathan Jones, Deputy Treasury Solicitor, explained that Middle Temple Advocacy Faculty had made great progress in developing specialist advocacy training for the employed Bar. The skills are the same, but the context is often very different from the traditional court room setting involving briefings to ministers, senior managers or boards of commercial organisations.

Clare Strickland, an EBC member, assisted them in demonstrating the Hampel method—which allows students to demonstrate their skills and then subjects them to constructive criticism after which they repeat the exercise—in action, to great applause.
I reminded delegates that if we are to progress these initiatives, we need more employed Bar volunteers to train as Inn trainers and to put forward realistic scenarios, as well as keep communicating what training would be helpful!

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Melissa Coutinho

Melissa Coutinho is a lawyer for the Government Legal Service An accredited arbitrator, qualified PPM practitioner and a magistrate, she also writes and lectures on medical products and their regulation.