There are probably about 5,000 self-employed barristers and 1,000 higher court advocates active in criminal defence work. While the number of firms has dwindled substantially in the last few years, the number of barristers has increased, notwithstanding the fact that the work has diminished, mainly through the Crown Prosecution Service taking 25% of it in-house.

The reason for the divergence in the numbers of litigators and advocates is simple; the Carter reforms made firms leaner, but there is no short- to medium-term ‘self-correcting’ mechanism that weeds out excess capacity in the advocacy market. The criminal bar’s problem is a Malthusian one.

Hardship has been piling up at the criminal bar for three years now. The bar leadership has sought to devise ways of maintaining its cherished sole practitioner model, as well as allowing barristers to work concurrently in other entities. But it cannot tackle the elephant in the room – the oversupply of barristers practising criminal law. There is also another headache; the spectre of OCOF (one case one fee, also referred to as the single fee). Yet the biggest problem remains: how to get more work?

The bar’s strategy document The Future of the Bar stated: ‘The criminal bar needs full direct access, and (certainly by the time of the next round of Legal Services Commission contracting). . . The criminal bar will need to transform itself into fully functioning litigation units within 12-18 months.’

The Criminal Bar Association suggests: ‘The obvious solution is for the bar to plan to gain control of the single fee by the establishment of procurement companies that can obtain the work from the Legal Services Commission.’

ProcureCos are corporate vehicles of chambers, or sub-sets of chambers, through which LSC contracts can be obtained. This is a perfectly legitimate goal, though the indirect means of gaining direct access is perplexing and could be problematic. Over 100 people are working in various bar committees to put the bar in a position to be able bid for work in competition with their supplier firms. But, according to a CBA circular, ‘the prospect of bidding for a contract with the Legal Services Commission is one many people will find daunting, even unpleasant’. For a number of reasons, most of which have nothing to do with HCAs, the doubters may well be right.

According to statistics collated by the bar, for every 13 people arrested, 12 are charged, 11 are dealt with in a magistrates’ court and one in a Crown court.

Another statistic published by the bar states that each year more than one million prosecutions are brought – 93% are tried in magistrates’ courts and only 7% in Crown courts. In 2008, 143,000 cases were heard in Crown courts, of which around 12-15% would have involved full trials. I will leave the reader to work out the average share of cases/trials for a cadre of more than 5,000 barristers.

It becomes clear that, even while discounting HCAs, the average share per barrister advocate is pitifully low, even when allowing for multi-defendant cases/prosecution briefs. There are too many advocates chasing too few cases.

An element of the bar model involves barristers doing much of the litigation work themselves. As The Future of the Bar puts it: ‘A new recruit might – while employed – do the full range of criminal work from the police station to the Crown court. But after (say) three years that person would (or might) graduate to the chambers and become self-employed and concentrate upon advocacy.’ In this scenario, presumably the solicitors who were used to get a toehold in an LSC contract will be jettisoned, or be confined to doing the ‘dirty work’ of interviewing witnesses.

If ProcureCos do win a number of contracts, then as the bar is city-based, local high-street provision will wither away as more and more work is done within chambers and less and less is handled by solicitors. In many cases, there will simply not be enough funding to support both bar and solicitor. The Law Society will need to provide advice on what type of contract to sign with a ProcureCo, and red lines relating to work and price will have to be negotiated, just in case.

Another point that needs to be quantified in the bar’s quest for direct access is investment in overheads in order to manage clients. This could entail a rise in practice costs from 30% to 70%.

There are other reasons why the ProcureCo model may be unattractive to an individual advocate. Consider a set of chambers in London with, say, 30 members who all want their regular diet of Crown court briefs. They would need a litigation tail of some 150 duty solicitors with their own attendant needs and infrastructure. The cost would be unsustainable. With anything fewer than 150 litigators, there would exist an inverted pyramid which would collapse under its own weight for the same reason that led to the creation of ProcureCos in the first place – the lack of cases.

Outside London, areas will have their own local dynamics, but Procure/supply cos cannot conjure up the number of Crown court cases for their sponsoring chambers if these remain the same size. To succeed, these or any other entities must reflect the ‘market’ they serve. In other words, only 5-7% capacity of a contracting entity is required to undertake Crown court advocacy work.

Yet the ProcureCo concept seems blind to this basic notion. Given that Procure/supply cos will be born with a structural handicap of too many owner-advocates to support, there is bound to be internal friction on the issue of case allocation. So, it can be predicted that there will be an inbuilt bias towards internal conflict caused by a likely shortage of work that will lead to a fracturing of many Procure/supply cos.

The Ministry of Justice will want to be satisfied, before awarding a contract, that there are proper succession rules in place in the event of internal squabbling. We could see scenarios where inter-lawyer litigation disputes keep other lawyers busy. The winning of contracts and direct competition with solicitors will result in less advocacy work than before as competitors will not lightly cross-brief.

Greater incentiveThere will be a greater incentive to brief those barristers who are not in any ProcureCo arrangement. It is not clear if anyone has run the numbers over this particular issue. QC practices will suffer more than most, as their work is derived from an even wider supplier base and a greater number of them want to remain outside a ProcureCo set-up.

The prospect of fewer cases will be more acute in non-London areas, which are likely to see an increase of briefing to non-rival, London-based advocates.

In any event, non-ProcureCo entities with properly calibrated lower advocacy capacity, with lower overheads for higher returns per advocate, will be more competitive – and their members much better off than in ProcureCo-type set-ups.

The other troubling facet of the Procure/supply cos model is the notion that in a criminal case a member of chambers is acting for the prosecution and another for the defence – yet both are from a small band of shareholders in the same Procure/supply co that has the contract for the defence case.

This is an unsettling idea in a criminal law practice. More broadly, why would solicitors want to become sub-contractors to bar-owned entities? The whole ProcureCo/supply co idea is predicated on the MoJ’s paper Restructuring the delivery of criminal defence services. The premise is that rates are dropping so low that only a consolidation of the supplier base into bigger entities will deliver sustainability of the supplier base. It is envisaged that London would only have about 40 contracts and other criminal justice areas about 8-10 contracts each.

The bar aims to ‘piggyback’ on this reform, and those firms that are in danger of not getting a contract will be able to do so under the banner of the chambers-owned ProcureCo. But the self-employed bar has no interest in 93% of cases, that is, those that end short of the Crown court.

Even so, London chambers work the magistrates as agents, seeking to own/manage this caseload by simply setting up franchise agreements with firms. The amount to be devolved to these firms will then be decided by the bar. Therein lies disaster for supplicant firms which would be better off forming consortia with one another.

It would be better to come to an arrangement with colleagues you know and who understand the pressures you work under. All this, of course, rests on the MoJ actually enacting these arguably unnecessary reforms. If it does not, then ProcureCos will find it difficult to get off the ground, unless they own a litigation or police station work capacity.

So the bar is actually finding itself in a position where it must support the culling of firms to get its project off the ground by then offering a home to the same culled firms. There are also some large firms that are readying themselves for a restriction in firm numbers by buying up smaller firms to guarantee a contract. Such firms are in a better position to set up or sponsor new advocacy units, which could comprise barristers and HCAs.

Other firms like the one in which I am a partner are actively exploring forming consortia with other like-minded firms to offer clients and the taxpayer a complete service across the relevant pan-London geographical area. This also involves assisting able barristers to form new chambers where there is a decent ‘guarantee’ of advocacy work of the requisite level by the control of numbers.

The same would apply to a commonly owned police station representation agency that covers the entire area of operations, all of which are linked to a common IT system. This can report its work centrally and obtain payment and distribute it to consortia members and advocates according to pre-agreed protocols.

It may be prudent to assume that the government would not decapitate the supplier base in the numbers envisaged in the ‘Restructuring’ paper and that if there is ‘reform’ it is more likely that there will be about 80-100 contracts in London. In this event, the advocacy share of each contractor, including ProcureCos, will be much lower than the same chambers previously obtained.

The winners out of all this could be those barristers or sets that rely more on prosecution work and/or do not bid for a contract and/or ally themselves with large firms or multi-firm consortia.

Psychologically unhealthy The misdirected anger at solicitors on the part of the self-employed bar over losing more and more work is not something to be underestimated. A leader of one of the circuits described the state of relations between the two branches of the profession as being one of ‘war’.

It is a strange, psychologically unhealthy, professional life indeed where lawyers are constantly invited to wine and canapé receptions by fellow lawyers in chambers who actually believe that they exist in a state of combat with the very people on whom they are lavishing hospitality. The existence of chambers (no holiday pay, no national insurance, no office overheads) actually suits solicitors, but the current bloated size of chambers does not suit the advocacy market.

­Avtar Bhatoa was a barrister for 10 years and has been a partner at Bullivant & Partners, London, since 1995. He is a member of The Law Society’s criminal law committee