‘Will these hands ne’er be clean?’ Lady Macbeth
I’m not accusing readers of any guilt in the current situation, unlike that felt by Lady M in hers, but it’s too good a quotation to miss; perhaps ‘When shall we three meet again?’ would be more apt. Anyway, to continue
the dramatic analogies, those of you who are currently undergoing household isolation are probably encountering something like Beckett’s Endgame, but with the exquisite added trauma of caged children.
In unprecedented times such as this, it would be utterly crass to write on what measures you might now consider to ensure that your chambers’ business-continuity plans are up to date. Almost no one will have planned for a crisis like this, and everyone
will have been scrabbling to identify how they can keep the lights on for the next three, six months, whatever, and, by the time this is published, you’ll have reached some sort of plan, although that’s probably still quite scary.
However, as well as coping with the current crisis, it is worth now (yes, now!) starting to put together the strands of an ‘after-action-review’ in order to consider what chambers should put in place for the future. COVID-19 is, now, a unique
event in the modern economy, but that doesn’t mean something similar won’t happen again. Despite the current efforts of the People’s Government in China, there will still be many small societies in China and elsewhere in the disadvantaged
world where live markets of bats, pangolins, and the like will be traded, with the potential to produce similar or possibly worse species-hopping viruses. There will also be other potential crises.
So, barristers’ chambers, like all businesses, need to review, as they emerge from this crisis, what they have done in the past regarding business continuity and what they might do in the future. I reckon I’ve got as good a handle as most
on what chambers need to do to best prepare for a ‘rainy day’, but this will vary to some extent according to the nature and size of the set. Here’s a list of some of the key things to consider for the future. (Many sets will be
doing some or lots of this already, but an important tenet of effective business continuity is to regularly review your plans, so I’d hope even those sets would benefit from taking a look afresh.)
1. After-action review
After any significant occurrence, examine it and identify what you can learn. Don’t just sigh and accept the outcome. Consult with others – within chambers, with other chambers, the Bar Council, the Bar Standards
Board (BSB), the Legal Practice Management Association (LPMA), the Institute of Barristers’ Clerks (IBC) and other ‘sector experts’ to see how you might fare better the next time. The role of the management committee/board is strategic,
so make sure it focuses at that level.
2. Financial reserves
Grown-up businesses furnish themselves with financial reserves; not many chambers do, despite lots of encouragement over recent years. Most chambers are essentially multi-million-pound businesses and should really be run as such. How is chambers going
to meet its financial obligations to creditors, employees and pupils if it hits a serious problem? Most chambers’ constitutions contain a liability clause that places the burden on all members – would you rather have built up a contingency
over time or have each member faced with a large bill at the time of their greatest financial vulnerability?
This might involve raising a little the rate of members’ contributions for a time, or not refunding any end-of-year surplus, but having financial reserves has also been shown to provide a greater sense of security and stability throughout chambers.
Furthermore, having to negotiate with staff possible redundancies or pay reductions because you haven’t got the funds to cope through a crisis does nothing to engender staff loyalty when the crisis has passed; medium-term staff retention could
be seriously threatened.
3. Chambers as a business
This current crisis raised uncertainty over whether a set which operates as an ‘unincorporated trade protection association’ qualifies as a ‘business’ or not. This rather arcane question put into doubt eligibility for some of the
government’s financial-protection measures. Fortunately, in this instance, TPAs are being treated as other businesses, but, for the future, why not consider operating through what is often called a ‘service company’? This is simply
an incorporated limited company, through which chambers can employ staff, lease premises and equipment, buy services, and provide the necessary services to the members of chambers. It is not administratively burdensome and can have significant benefits.
4. A barrister as a business
When the BSB became authorised to regulate companies a few years back, there was a flurry of initial interest from barristers thinking of setting themselves up as a limited company. Changes in tax legislation, especially regarding dividend payments, have
made this a less attractive proposition, but there are likely to be many practitioners for whom ‘incorporating’ might be a sensible step in best structuring their business, and the Bar and chambers should facilitate this. However, the
process of applying for registration as a company with the BSB, even for a single-barrister entity, is still overly complicated, and chambers’ constitutions and indemnity agreements would need to be amended to accommodate the company as a member,
which is more complicated than one might initially imagine. Both these matters should be addressed.
5. Chambers’ governance
Having a constitution and a governance structure that enables the greatest reasonable level of delegation of authority (with appropriate checks and balances) means that chambers can achieve swift decision-making and effective communication. Crisis-management
will only be impeded by restrictive, non-permissive processes.
Business disruption caused by disease especially brings into stark focus the need to have designated in advance alternatives for key personnel. Depending on your governance structure, who is authorised to make decisions if the head of chambers or most
of the management committee (below the level of the quorum) or the senior clerk/chambers director/head of finance are rendered incapable?
Key-personnel succession planning should also be in place. How are the decision-makers in your set going to react when, for example, the senior clerk (who may be considered indispensable) says he/she is leaving? Don’t wait until it happens to think
what you would do.
The termination of membership clauses in constitutions should also be reviewed – many chambers (I’ve seen about 50+ constitutions over the years) have clauses that are imprecise and tend not to be consistently applied. Chambers often mention
in marketing materials their ‘unique’ collegiate nature and the loyalty of their members. However, loyalty is really easy when times are good but, in the ‘eat what you kill’, self-employed world, loyalty becomes very fragile
when times are tough or when a better offer turns up. Chambers has an obligation to reasonably protect its remaining members from the financial effects of the departure of others.
6. Business communications
In other words, ‘PR’. In any form of business disruption, you need to put in place immediately arrangements to reassure existing and potential clients that you’re managing the situation. If you don’t, but a competitor does, you
will lose business. Chambers’ reputation is critical to its future prosperity. PR-savvy chambers will already have some level of in-house experience of business communications or have a retainer in place with a PR company.
Lots of businesses are now trying to buy pandemic insurance cover – obviously with no success! When the dust eventually settles on COVID-19, chambers should look at what cover its insurance provides in the way of business interruption and
consider whether extending cover is justifiable. Chambers will also want to have in place legal-advice cover should an employee or barrister-member decide to sue chambers. I would hope that most sets have already considered ‘cyber insurance’
– the costs of resolving a data breach could be enormous.
Many sets will already have given detailed thought to their tech needs in the event of a crisis (indeed, business continuity is often wrongly dismissed as just ‘something for IT to look at’), but the pandemic has revealed a number of issues.
How many key personnel are working on aged laptops? What happens when these (or any barrister’s computer) fails? There have been many such tales recently. Chambers should ensure that its key staff have both up-to-date laptops and phones and
back-ups; each barrister will probably want to ensure the same. (Many laptops were ‘out of stock’ in March and, in any case, you probably don’t want to have to wait a couple of days before key personnel get back up and running.)
What contract do you have in place for IT support? Does it provide out-of-hours cover? If it doesn’t, and if your IT system falls apart at 5.01pm on a Friday, are you comfortable that there is no contractual obligation for any remedial action until
9am on Monday? (Even worse, over Easter and Christmas.)
One real benefit from the COVID-19 crisis could come in the form of increased use of homeworking and ‘remote hearings’. Lots of the functions of chambers can be achieved by some staff working from home. There are many considerations relating
to the cohesion of chambers, for both staff and barristers, in having too much homeworking for too much of the time, but chambers should carefully examine what it thinks is feasible for the future. This is likely to improve the prospect of effective
business continuity. The potential for greater use of video technology for court and tribunal hearings is significant. There are many understandable and justifiable reasons for certain aspects of hearings to be ‘in-person’ but, equally,
there have been too many objections on the basis of ‘we’ve always done it like this’. It will be fascinating to see how the experience of remote hearings over the next few months is assessed. The investment required by chambers and
barristers to be able to participate remotely in hearings and client conferences is pretty insignificant compared to the potential benefit.
9. Risk strategy
Above all, chambers should be reflecting its business continuity plans in its risk strategy – and chambers should have a risk strategy in order to comply with the regulatory obligation for risk-management. There are many models for a risk strategy,
and you don’t need to be elaborate, as long as you document what you consider to be the strategic risks and how you will deal with them.
Let me mention something about the Bar Council and its place in supporting the Bar. I’ve had the pleasure of liaising with Officers and senior executives of the Bar Council over many years and have sat on its committees; I have also had close involvement
with the Bar Council during the current crisis. Throughout these years, I have recognised an extensive lack of awareness amongst barristers and chambers’ staff of what the Bar Council is and what is provides. (Many still think the Bar Council
and the BSB is the same thing.) Many barristers have been exasperated by the amount of their annual fee, without realising that the vast bulk of this goes to fund the regulator. I know that the Bar Council, as a representative body of a multi-billion-pound
profession, is woefully underfunded to carry out even its ‘normal’ roles. In the last few weeks, there have been countless requests for the Bar Council ‘to do something’ to resolve or represent to the government the current
woes facing the Bar. The understaffed and (compared to many chambers) significantly under-salaried Bar Council has been working silly hours to do what it can, and has achieved tremendous results. If the profession wants a body to act as its representative
in both good times and bad, it really needs to fund it properly. Find out what the Bar Council actually does, maybe even volunteer for its committees, and remind others that the Practising Certificate Fee is pretty reasonable and that the Bar Representation
Fee should be seen as an essential contribution.
Most of all, good luck for the next few months.
For the latest information regarding COVID-19 and the Bar, go to the Bar Council’s Coronavirus advice and updates page; and also see the latest news and announcements on the Bar Council’s Press Releases webpage. For any specific
queries about the coronavirus crisis and how it impacts the Bar, please email the Bar Council, LPMA and IBC Working Group at: C19WG@BarCouncil.org.uk.