Bar Focus | Putting differences aside

In the last Bar Focus, I wrote about the change facing the legal profession. Since then the pace of that change has increased dramatically. Despite the myths and stereotypes that are attached to lawyers, we are, in fact, quite used to dealing with change and adapting well to meet the needs of clients and working within financial and regulatory constraints.

That's why the joint statement issued by the Law Society and the Bar Council about the introduction of the new contractual terms is so important. There is a desire and willingness to find a structure which offers certainty and financial security to both sides of the arrangement. For centuries solicitors and the Bar worked on a gentleman's agreement. Instructions were sent, work done and, in the overwhelming majority of cases, fees paid in a reasonable time. That arrangement depended in large part on the fact that the lay client had or would settle his bill when asked. For many and obvious reasons that picture has altered.

Code of Practice

Until recently the payment of fees between lawyers was governed by the Code of Conduct of each side of the profession. Solicitors had a professional obligation to pay counsel's fees and barristers had a duty to report them if they didn't meet that commitment. Such a report would mean that a firm went on to a list and it was professional misconduct for a barrister to accept instructions from such a firm unless payment was received in advance. The commercial realities of the modern world meant that rules of professional conduct placed a burden upon the unpaid rather than the unpaying. The inevitable reaction to the removal of the requirement from the Law Society's Code was that some new arrangement had to be put in place.

Finding the best new arrangement has been a difficult process. Although the problem concerning non-payment was very limited, it was very real to those who were not paid. That is particularly true as the burden often falls on the junior and most economically vulnerable.
The Law Society's strap line, simply, is: "supporting solicitors". Unsurprisingly the Bar Council has the same aim for its members. Sometimes there are tensions between each body and the fulfilment of these intentions. Working through the challenge of competing interests to finding a way that best serves both sides is actually what lawyers do best. There is an irony in being able to perform our function better for our clients that we can for ourselves but it is only an irony. We want to work together in our own best interests and that of our clients. We will find a way of making the relationship work to the best advantage of all. The legal profession is not populated by characters in Dickens novel. We are highly skilled professionals operating in the commercial realities of the worst economic crisis in generations.

Both sides of the profession must work together to find the answer; even when the question is difficult. It harms all our reputations to be seen to be unable to work together on this. There is a mutual need, and this must not be seen as an opportunity to impose unreasonable terms in return for the promise of work. Both the president of the Law Society and I are determined to help in any way possible.

These matters are particularly important at a time when there are so many challenges from outside the profession. Again the Law Society and Bar Council, will continue to cooperate whenever possible to formulate arguments of policy for the continued provision of legal advice and representation to those who most need our services. Almost certainly there will be more government spending cuts, we must not allow these pressures to drive a wedge into the profession. An independent referral Bar is essential to the continued existence of a strong legal profession. It is an absolute necessity for the survival of smaller and medium sized high street firms, just as much as it is required for those larger firms which provide highly specialised services to commercial, both domestic and international, clients. The recent launch of the Ministry of Justice's renewed international action plan, which has growth at its core, demonstrates how successfully we can cooperate and work together with the City to import and export large amounts of work and profit. That is a parallel to be drawn with the entirely domestic sphere. It is our brand, our values and our infrastructure which provides the foundations for billions of pounds we earn each year in foreign exchange. We can use that to demonstrate our value to the economy and society. We must continue to work together to advocate our contribution, and not just in financial terms, to all.