12 December 2008

Practice: Desmond Browne: 'The Bar is not for me'

On the very day that Rio Tinto announced 14,000 redundancies, Sony another 8,000, Mercedes short term working and Woolworths finally gave up the ghost The Independent published an extract of a speech by Dersmond Browne (the Chairperson-Elect of the English and Welsh bar) entitled  'The Bar is not for me' – words no one should say to themselves"  Giving Browne as much credit as one can, it was good that he bemoaned the under-representation of black, minority, ethnic barristers in the self-employed bar, on the bench and in silk. I've just become a member of a minority group (and quite a vulnerable one at that) and appreciate his concern. The problem is that the only way to change that balance without a purge of those already there would be to recruit more barristers. At a time when every other industry in the world is cutting capacity ours must be the only one that is actually talking about expanding it.   That, of course, is ridiculous.

Let there be no mistake, if the bar promised a good living together with a sense of purpose for those who practise in it it as it did when I was called by Lincoln's Inn in 1977  there would be just as many able "black, minority and ethnic" candidates for our profession as there are for say professional football or for the NHS. 

The bar has always been difficult to enter and very competitive. Most of the students with whom I dined in the 1970s fell by the wayside for one reason or another. But for these who stuck the course and established themselves there were some real rewards to which we could look forward. 

First, there was the prospect of an appointment with a good salary, high social and professional status and an inflation proof pension.   The bar was the only route to the High Court bench and the best route to the circuit and administrative bench.  Not any more.    And since at least one Chancery judge (who is sadly no longer with us) resigned his appointment after a few years, and since another got himself into a spot of bother by talking to as firm of solicitors about a job, it seems to me that life on the bench can no longer be all that it was cracked up to be.

Secondly, there was legal aid in 1977 for everything including even intellectual property. That enabled the bar to expand from about 3,000 when I was called to over 14,000 as it is now. I never did a lot of legally aided work but nearly every case I did that ran the distance had an assisted party somewhere in the distribution chain. Usually it was the lowly cove who squeezed the post mix spirit into the soft drinks bags or flogged snide jeans in Bury market.  The only thing that such people had to lose was their liberty which was why an interim injunction with a penal notice threatening a spell in Armley or Strangeways for disobedience was sought in just about every infringement action.    Legal aid for these cases was abolished by para 1 (h) of Schedule 2 to the Access to Justice Act 1999. At a stroke that cut away 80% of the court work that I used to do.

Thirdly, it is now a lot more expensive getting to the bar or indeed any profession than it used to be. When Gordon Brown, Desmond Browne and I went to university our fees were paid and we actually enjoyed a small maintenance grant which together with a holiday job with the British Council driving visiting scholars around London not only paid for my board, lodging and a few books but actually allowed me to run a car and take myself skiing in Austria once a year.   When I left university my bank account was actually in credit by a few pounds. Virtually nobody who graduates now can say that unless he or she has been supported all the way by spouse or parents. After law school or the conversion course (more expense) there is the vocation course (yet more expense) a year of pupillage (supposedly funded if you can get one) and the long slog to get established.   Who in the right mind would want to incur liabilities without some assurance that he or she can discharge them from his or her earnings except in the absence of an alternative.

But nowadays there are plenty of alternatives.   If a young person is attracted to advocacy, there are so many ways that he or she can do it. Of a bright spark wants to shine at the Bailey he or she can apply to the CPS. If he or she wants to argue points of patent or trade mark law before a hearing officer in the IP Office or a board of appeal at the EPO or OHIM that young person is best advised to become a patent agent. I know of no counsel who have appeared before the European Commission in an article 81 or 82 case but I do know solicitors who have done that.   Similarly I know of no barrister who has ever appeared before ICSID on a dispute under a bilateral investment treaty but I do know of one solicitor who has carved a practice in that area of the law.   There are whole areas of advocacy that are effectively closed to the bar.

Now this is all very uncomfortable for people like me but no government is ever going to repeal the Courts and Legal Services Act 1990 and Access to Justice Act 1999, restore legal aid or even cut fees for childcare work. We have to realize that we are a service industry just like everybody else. We barristers will continue to make a living only if we provide serviced that the market wants to buy rather than nag the public into providing a market for the services that we want to provide.

We've got to change our working practices and business structures. For a start we have to make it worthwhile for barristers to invest in their practices (including training the next generation of barristers). That means giving them the opportunity to recover their investment preferably with some capital gain. Other professionals do that by selling their shares or goodwill.  We need to be allowed to form the same sort of business structures as solicitors, patent agents and accountants. There is a consultation by the Bar Standards Board on partnerships between barristers and legal disciplinary practices.   I sincerely hope that barristers respond thoughtfully to this document in the sort of numbers that they responded to the consultation on the footling issue of court dress.

We have to develop new services tailored to our market.   I'm trying to do that through my network of clinics . inventors' clubs, mediation and training services,. by re-packaging traditional services like injunctions in a way they should appeal to business (see www.nipc-injunctions.co.uk) and forming alliances with other professionals like IP Yorkshire and IP North-West.   My business model is to develop services for the start-ups and SME who have never gone to the bar before but whom we are very well suited to serve. It's too early to say whether it will work but its better than moaning about clerks, solicitors and the Ministry of Justice.

1 comment:

John Flood said...

This is all true and there is no way the clock will ever be turned back. Government quickly learned that demand-led legal aid was not a vote winner and when compared to funding the NHS the latter would easily trump legal aid. So I agree with your conclusions that the Bar must re-invigorate itself and develop new ways of meeting market needs.