Fresh vision

Writing in this journal two years ago I took, as leader of the Western Circuit, a look at the past and present of this circuit. I began with the Bloody Assizes in 1685 and ended with the modern, legally diverse, regional Bar. Still in post, I am now asked to look at the future. What follows is a personal vision.

In ten years, maybe less, life will be different. The present model in which a solicitor takes on most things in the law and then in certain individual cases instructs a barrister for a fee to tackle that which the solicitor is disinclined to do '“ for reasons ranging from a lack of particular advocacy or legal expertise, to pressure of work, or in order not to be out of the office '“ is outdated. We can all agree that it has in the past been to the mutual benefit of solicitors and barristers; that it has sustained a legal system heavy on oral advocacy to resolve disputes; even that it has been fun. It will on occasions continue at the top end of the market (which means particularly in London and less so on circuit). But I believe the idea that it will remain the standard model is daft. It will become a Rolls Royce system: a rare if classic luxury, expensive to run and more often seen in the city than on country roads. Why should this be?

For the first time there are alternatives available. Under the Legal Services Act 2007 almost anything goes, subject to regulation. There is no point in lawyers yearning for times past. The 2007 Act is in force. The debate as to whether freedom to practise in any form is a good or a bad thing is completely sterile.

Second, in publicly funded work '“ on which lawyers' in the provinces are more heavily dependent than their city cousins '“ the government is no longer willing, or perhaps even able, to pay for the Rolls Royce system. Banging on about the iniquity of cuts in fees may be tactically and politically vital for the leaders of the professions, but it is no long-term strategy to retain the present system. Whether or not cuts come our way (and they surely will) there is no prospect at all of a pay rise from government and, thus, in the medium to long term, the present system is bound to become uneconomic.

A new strategy

On one view, the best solution for all lawyers is simply to move out of publicly funded work wherever and whenever possible, as dentists have successfully done. Indeed that must be a part of the strategy of any sensible lawyer other than those committed to particular kinds of work for ideological reasons. Looking at the big picture, it is inevitable that the breed of lawyer that tackled crime in the past will not continue to tackle it in future. Those who have a choice, or who can develop a choice, will move away. I suggest they should be encouraged to do so by their leaders. There is after all so much more law around these days from which to choose. The legal marketplace in the UK is worth around £15bn, of which only £2bn is publicly funded. It is very difficult to advise any individual, particularly a specialist in crime of long experience, to go and do some other kind of law; but however difficult a move may be at the level of the individual, at the level of the professions '“ at the level of the firm or set of chambers '“ that must be the strategy. Or at least a part of the strategy. Is it worth looking a little further? Can lawyers continue to show a public-spirited commitment to the criminal and family justice systems? Or, in other words, what is the best way to make a living from crime or family? Of course, the professions' leaders should attempt to encourage government to introduce private money into the publicly funded justice system. Top-up fees, increased use of legal expenses insurance and more '“ although, post-Jackson, not higher '“ contingency fees offer opportunities. However, in crime at least the Rolls Royce system will not work. In crime, the age of hourly rates or even one fee for one case has gone. To pursue it in publicly funded criminal work is not just to risk, but actively to seek, death by a thousand cuts. Family work will surely follow.

Instead, new business models and new alliances between solicitors and the Bar may just provide a means to some profit. Firms and chambers should be encouraged individually or, as occasion demands, together to tender for block contracts of work and to take much greater control over the distribution of that work. The Ministry of Justice promises a consultation on such a scheme this summer. This is at least provisionally to be welcomed. The casualty will be client choice '“ but the time has come to rethink this and the quality agenda. One barrister undertaking eight pleas in one court rather than eight undertaking one each does not inherently increase the risk of an unjust sentence '“ although it does reduce the cost.

Would a firm of solicitors or a set of chambers offer a discount to secure a significant share of a particular market? It would. Would a firm and a set combine at least contractually in order to undertake all the work on a block of cases? They would '“ or at least they should, if given the ability to plan for and divide up that work in the most cost-efficient manner. Such an approach will never make publicly funded work lucrative, but it might just make it viable. I think it offers a better prospect than the current approach which sees long-established, generalist regional firms either dropping legal aid work or carrying their publicly funded departments for reasons of tradition, esprit de corps and friendship, but not for profit, and sees the junior Bar anxiously searching for options beyond publicly funded work before they become trapped in it like their more senior colleagues.

The issues also range far beyond the publicly funded sector. Local authorities, insurance companies '“ all large-scale users of legal services are hampered by compulsory use of the Rolls Royce model. For the Bar, the term 'large-scale users of services' of course includes individual firms of solicitors '“ in other words, particularly good customers. Notwithstanding the development of its industry over the last 150 years from the cottage to the global, the Bar has not to date provided an opportunity to give a discount for quantity. This makes no business sense and is the result of a slavish devotion to self employment. The Bar's clients have realised this and turned it to their own advantage: only this explains the current trend towards the use by local authorities and others of panels of barristers both in the regions and in London. Chambers are encouraged to pitch for the admittance of their barristers to the panel. They drop their prices to do so but receive (despite the blandishments in the 'tender' documents) no guarantee of work in return: the panel turns out to be open-ended. In truth the successful tenderer receives nothing at all. This makes no business sense for the Bar and is a direct consequence of having no means to block contract.

Joining forces

I acknowledge the current major fear among all regional criminal firms of solicitors: the future loss of all publicly funded work to a few giant 'factory' firms. The threat is real. However, if combinations with the Bar are possible '“ and I believe they are '“ then such arrangements offer a possible defence. Also, the regional model of smaller, more manageable firms and chambers, with a greater personal knowledge of each other's qualities, are likely to be at no significant disadvantage. Perhaps they will be better placed to join together to block contract.

Is this fusion? No. Fusion comes if the Bar attempts to move onto solicitors' territory. The more it attempts to conduct litigation or handle its clients' affairs and moves away from advocacy and advice, the more it destroys its raison d'etre. The Legal Services Act 2007, which is driving change, regulates various reserved legal activities. If in future we all carry out the same reserved legal activities, we can have the same regulator. And once we have the same regulator, then the LSA guarantees fusion because regulation and the regulator are all. Anyone and almost anything can practise law provided they are regulated (see sections 13 and 18 LSA). It is not the Rolls Royce model of instruction, or worshipping at the altar of self employment, that preserves a separate profession: it is specialisation in particular reserved legal activities '“ for the Bar, that means advocacy. For as long as this is maintained, while firms and chambers may and should enter into binding contractual relationships, there is no advantage in merger and therefore no need to merge.

Looking ahead

What then will this look like in ten years' time? I predict that in London and to a much lesser extent in the regions there will remain a small, truly specialist, and largely civil law Bar, accepting instructions in the time-honoured fashion, untroubled by change and living in the never-ending Edwardian summer of individual instruction in the particular case. Problems of conflict will prevent partnership or other merger between such barristers (although interestingly individuals may for tax reasons become incorporated). For them, as the poet almost said: 'The church clock still stands at 10 to 3/ And there is honey, still, for chambers' tea.' Beyond London, such barristers will be scarce. Most of the Bar will belong to chambers involved in a variety of deals with firms of solicitors, local authorities, the CPS and the LSC. Some, probably only a few, will be partners, some will practise in more than one capacity and many will remain self employed '“ one-man bands utilising the by then standard chambers' 'ProcureCo' as a means to block contract.

This is not an apocalyptic vision. In fact it offers significant advantages. In publicly funded work it will never provide honey, but it may provide bread and butter. The junior barrister will not as at present wait around to be noticed at the start of their career, living on returns in the meantime. Having survived a selection process no less ruthless than at present, he or she will be thrust into court from day one to make block deals pay. This will either be to their taste and talent and they will thrive, or it will not and they will not be carried by chambers as a passenger. If their career develops they will, at first occasionally and then possibly increasingly, be instructed individually in cases that are sufficiently out of the ordinary as to attract the Rolls Royce system. There will not be many such cases if the barrister is unwise enough to practise entirely in publicly funded work; although they will be able to console themselves that even this regime is better than the alternative of the old individual case fees that by about 2012 had become so low as to be economically unviable.

This vision offers at least some prospect of avoiding the wholesale, if only medium to long term, flight from publicly funded work.

It reflects the industrial scale on which legal services are now offered. It offers a career structure. And it offers the prospect of preserving separate professions for so long as the tradition of oral advocacy (to which we in the UK continue just about to adhere) may need it.