Bar Focus | Embracing purposeful change

The Bar is changing. For a number ?of years the question most commonly asked about the relationship between barristers and solicitors has been 'fission or fusion?' The reality is somewhat different.

As the legal profession, collectively, comes to terms with the scale of the change that the Legal Services Act has and will continue to create (albeit at different speeds), it is becoming clear that the relationship between the two traditional strands of the profession is more sophisticated than a simple, binary model.

The future reality is likely to be far more of a hybrid, with different ways of working becoming more familiar. That will continue to enforce the traditional practice of working together in the public interest.

However, it's not all about opening up choice to the public and the profession. Not all lawyers will have the luxury of choosing their future, particularly those who are most heavily reliant on publicly funded work. But for many, the great gift '“ and yes, it may be a gift, rather than simply a curse '“ of the new regulatory landscape is the opportunity it affords them to shape ?their practices in a way that is relevant to their client base but can also provide a longer term, sustainable business than the current arrangements.

Reports of the referral model's death are premature. In many, and probably most situations, it works perfectly well and will continue to do so. The services which the Bar and solicitors provide are complementary and vital to the proper working of the justice system.

Many solicitors do not want to ?conduct advocacy and most barristers have no desire to conduct litigation. But we are now working in a more permissive regulatory framework, which means that there are greater opportunities than ever before for those who wish to undertake different forms of work to do so. That has its pros and cons.

Structuring the profession

We often get absorbed in navel-gazing levels of detail. The way in which we structure our profession is, naturally, of more immediate interest to us, as practitioners, than it is to the outside world. Clients want access to legal services in a way which is simple, cost-effective and provides a level of quality and experience which suits their requirements. We must always keep in mind that our first priority must be to strive to ensure effective access to justice, while maintaining the highest professional standards. This includes, where necessary, driving up standards. Quality assurance, once properly formulated into a working scheme, may provide another valuable opportunity to ?the profession.

There may be a range of views as to how best to achieve that, but that continues to be our goal. All of that has to be achieved against a backdrop of a vast fiscal deficit, which will take an uncertain number of years to overcome. In legal aid there seem to be only lean years ahead. It is abundantly clear that the government cannot be relied on to deliver even the minimum that we all expect. Fees have been cut to a level 40 per cent less than paid in the 1990s in homicides. On any view the most serious crimes are no longer apparently that serious to the exchequer. The prosecution service has had to make cuts of 27 per cent so far. We have to maintain standards and quality against that background.

An effective and robust regulatory framework is an extremely important component of achieving the aim of maintaining standards of excellence and integrity. So is the way in which we all conduct ourselves as professionals. The cost of regulation is on an upward curve. It is becoming more expensive, and it is determined by multiple-layers of regulation.

As professional bodies lose control of their regulation, so too do they lose control of the costs that they have to levy upon their members. This has the potential to dilute their relevance to the profession, and as the costs increase, so, often does the animosity towards them. That puts the impetus on the representative sides of the organisations to demonstrate value to their members '“ that is no bad thing. The key point is communication and showing that we are acting on our members' behalf.

But the regulators have a responsibility too '“ to spend practitioners' money wisely and to conduct their duties diligently and in the public interest, not simply in the consumer interest and to act fairly and proportionately. They too, have to operate to promote the rule of law and to uphold the right to have access to justice, that is fundamental to a civilised and well-?ordered society.

The financial impact of regulation is a great but necessary burden upon the profession; it must be imposed responsibly and fairly. Once we have moved beyond the initial years of the settling down of the regulatory framework there will be opportunity to look again and ensure that it, too, is an efficient and effective system, working in the best interests of the public and the profession.

Permissive options

The types of services the Bar can now provide '“ direct access, the opportunity to spread into entities, to contract directly, to use BARCO '“ these are all permissive, not prescriptive. It is about providing opportunities. There is a choice. We want to make sure those who do wish to evolve have all the support we are able to provide them to do so. It does not mean that we have given up, but it means that we recognise the environment in which we are now operating.

In publicly funded work, this may well mean a sea change in the way contracts are awarded and delivered. For many practitioners this is a change that brings the prospect of a totally different form of practice. It is difficult to predict accurately what form these changes might take. It is essential that all play a part in trying to shape that future, both in the public interest but also in the interest of the profession. One of the major challenges facing the publicly funded Bar is to remain sufficiently positive and to engage in helping to draft the changes that will inevitably come.

In privately funded work, at home and abroad, it means a legal services sector which is a genuine global leader ?in providing innovative and market-defining services.

There is no mystery behind many litigants' choice of London as the place to commence proceedings and resolve their disputes. The UK legal system has an enviable reputation for integrity and its practitioners for their skill. That reputation is in part based on the incorruptible nature of our criminal justice system and it is essential to recognise that if the integrity and independence of criminal practitioners is lost that may well have a deleterious effect on the wider legal market.

There is a symbiosis between all sides of the profession, publicly funded and private, barristers and solicitors. We have much in common and we must try to stand united, rather than allow others to drive a wedge into the profession. On any view the legal market brings in millions of pounds in revenue, as much as 1.8 per cent of GDP in 2009. It will continue to play a significant part in the economy for the good. An adequately funded system of access to justice for those without substantial financial resources is, or should be, a political imperative. The loss of one may well damage the other, to all our costs.

Running a business

Looking forward perhaps the biggest change, at least for the Bar, will be the cultural shift of operating, openly, as a business. This will mean practical changes '“the management and structure of chambers may have to change for some. Already those changes have begun. Many sets have chief executive officers who play a pivotal role in the management of chambers rather than just the allocation of work. These sorts of changes, a re-structuring to promote more efficient and adaptable ways of working is fundamental to achieving success. The level of change available is slightly daunting but evolution is the only way.

It's not just the structure of chambers that's changing. Our own rules of practice and conduct have altered beyond recognition. It is a twist of fate that the regulation of a system we are all so familiar with has come at the same time as the implementation of external regulation, not to mention its cost. We have to remember that, at the moment, these changes are optional but that tendering for publically funded work may well bring with it compulsory alterations. It is vitally important that we look to the future and try to shape what may otherwise simply be forced upon us. For many that may well mean much greater joint working, even joining forces, with solicitors. For many it may not.

The crucial challenge we face is to maintain the dignity to continue to provide an exceptionally high level of public service, despite all that is done to us and said ?about us.

As a profession, we are about quality. We are about excellence and integrity. They are our bywords. Our values and our professional skills can be applied to a range of business models. We should not be afraid of change, provided it has a relevant and practical purpose. On the horizon there is change of a scale and magnitude that we have not seen for decades. But it is fast approaching and unavoidable. If we embrace it, holding tight to our values and standards, then we have nothing to fear.