‘I’m sure every chair for the last several years has been asked to comment on a forthcoming fusion of professions,’ said Andrew Walker QC when asked whether the solicitor and barrister professions will maintain their separate status in years to come.
Walker is just a few weeks into his job as chair of the Bar Council for 2018 and, while he sees plenty of concerns for the bar during his term of office, he is clear that fusion is not one of them. ‘The separation remains for a reason,’ he told the Gazette. ‘The bar’s focus is on advocacy and on the expertise of running trials, whereas, although there is a litigation element for solicitors, their work is primarily focused on the transactional work, which generates so much of our earnings.
‘These are the services we offer to the domestic and international market, and they are seen as highly valued services which people do not want to change. I don’t perceive it as being hot topic, if anything I see things moving back to where we were before the [Courts and Legal Services] 1990 Act,’ he said.
Those who have called for a fusion of professions include former Law Society president John Wotton, who in 2012 said barristers and solicitors will increasingly work together in the same practices. At the end of last year, England and Wales’ first female solicitor advocate QC went one step further and called on the professions to merge in order to ‘make the best of their shared skills’.
But Walker said he sees nothing to be gained from fusion. Rather, the logical step is for solicitor advocates to switch to the bar and the chambers model. ‘The fact remains that most solicitors don’t want to do advocacy work. But if they do we are now seeing them converting to bar and moving into chambers. The chambers set-up provides a forum for them to develop their skills and they come from a place where they see that as the next logical step.’
It is here that Walker rebutted another long-standing prediction, the death of the traditional chambers model. ‘In answer to people who say the chambers model is old fashioned, I’d say it’s clearly remained strong and remained strong for a reason.’
He went on: ‘If you have two professions, with one focused on advocacy, you want and need a structure to identity that advocate. The moment you do anything corporate you take away a huge part of that because of potential conflicts. There’s no easy way around that and its why the chambers model has remained the model of choice.’
That said, Walker does accept the need for chambers to adapt to more modern methods, such as getting better at marketing. ‘Of course, there is a need to increase market penetration, get more visibility, and push the identity, but we are still not law firms. We compete against each other. In fact, the person you want to lose against least is a chambers colleague.’
He added: ‘The bar remains the repository of where most expertise in advocacy is and the option to be able to choose the specific advocate rather than the firm is crucial.’
Confidence in the chambers model is also apparant from the seeming lack of interest from the bar in setting up Bar Standards Board-regulated (BSB) alternative business structures (ABS). A handful of ABSs have been set up since the BSB began authorising them last year but the numbers do not point to a significant shift in how the profession operates.
Walker said that alternative business structures were something the BSB ‘felt it was required to enable’ rather than a case of responding to a surge of lawyers keen to restructure their business model. ‘It comes back to advocacy being a personal choice,' he said. 'You don’t instruct a set of chambers, you instruct the advocate. You can’t do that in an ABS without there being all sorts of problems. I think the BSB has accepted that people prefer the chambers model. The structure [for ABSs] is there, but if no one taking it up it raises questions why. It strikes me there are good reasons for not taking it up.’
The council’s relationship with the regulator is a point Walker was keen to expand on. In his inaugural address last month, he spoke of how the BSB's decision to ditch plans to introduce the Quality Assurance Scheme for Advocates (QASA) scheme signified a ‘turning point’ in the the relationship between regulator and representative body. ‘I think we have come to a point where we have moved on from the very start [when regulation was hived off to the BSB]. I think the idea that regulation was to be done separately went too far in terms of how the profession saw it.’
He added: ’Being part of the profession and feeling you have ownership of it is fundamental, that hasn’t changed but I don’t think we have focused on making the most of it. If members of the profession are doing their own continuing professional development and keeping their skills up to date in way that most regard as common sense then I don’t think the BSB feels the need to get involved as much as they had at an earlier stage.’
On the specifics of QASA, which would have also applied to solicitors, he was clear that the opposition came on a ‘number of levels’.
‘Many at the bar took real issue at judges being asked to mark performances and being forced to go through this accreditation scheme. There was an element of being asked to reapply for your own job. It was taking responsibility for taking pride in our own standards away from the profession. That’s not regulatory.’
He added: ’We have a healthy and cooperative relationship with the BSB – often we strongly disagree with each other but we work together and discuss issues. The BSB now appears to be looking more at supervision and encouragement and we need to take that as an opportunity.’
So with chambers apparently in good health and a fresh approach to regulation in the offing, what are the key problems facing the bar in the year ahead?
Top of Walker's list is a looming shortage of junior barristers. His inaugural address referred to the dwindling number of practising junior barristers and the struggle to keep talented barristers at the bar. The number of juniors is as low now as it has been for a ‘quarter of a century’; while the population of practising barristers is rising overall the number of ‘more junior barristers has fallen significantly’, he said. ‘We have now reached the point at which the number up to five years’ call is back to where it was when I was called, 26 years ago,’ he warned. A failure to recruit junior barristers will, eventually, lead to a shrinking of the bar.
How then, do you go about convincing people it’s a career worth not only pursuing, but sticking with?
‘We need to make practice more attractive when people first get in,’ he said. This, he said, starts with supporting changes to training methods, but also includes reducing the burden on practitioners - including being ready to respond to the latest changes to the advocates graduated fee scheme (AGFS), combating poor listing practices and pushing for an alternative to the plan for flexible operating hours in the courts.
‘It’s not just about diminishing fees. It’s the burdens being placed on people. We are increasingly seeing barristers having to do more work without any extra money. If you are doing twice the work for same money you are effectively being paid half. This is not sustainable and it can’t go on.’
He added: ‘Bad listing practices have started to be raised as a serious concern for all involved. I’ve heard of civil cases being listed for 10:30am but then all the family work is done first forcing parties to wait until it is completed, sometimes for many hours.’
Equally pressing is HM Courts and Tribunals Service’s flexible operating hours. The plans, which have been shelved until a ‘robust, independent’ evaluation system is in place, would have resulted in 8am sittings at selected courts and for hearings to go until 8pm.
The Criminal Bar Association was vociferous in its opposition, going as far as to pledge its support for barristers who refused to work under the model. Walker was equally forthright. ‘It’s difficult to see how this will be implemented in a way that doesn’t have knock on consequences on people’s wellbeing,’ he said. ‘This cuts across not just our retention aims but also efforts to try and improve wellbeing in the profession.’
He added: ‘The initial reasons for rolling out the scheme was to make court hours more convenient for other users but I’m not sure that they looked at the bigger picture. What is convenient for a juror for two weeks is not necessarily convenient for those [lawyers] who have to engage with the courts every day. If someone can create a scheme that has no negative effects then we will listen to it, but it doesn’t seem like that’s been done.’