Uncertain Future for the Bar

Laetitia Ponde Nkot explores the current working situation at the Bar and the uncertainty surrounding its future.

Current bar situation

Research led by LexisNexis UK brings to light the reality of the Bar. 40 % of the barristers interviewed explained that the climbing of the costs, such as the tuition fees, the living costs, lease charge and house expenses opposed to the rentability of the businesses was one of the main reasons. 30% spoke about changes to legal Aid, fixed costs, and revenue issues;  numerous barristers wait months, sometimes many years to be paid, whether in public or private cases. 28% spoke about the expansion of regulations: new rules on Data Protection (GDPR), Money Laundering, HMRC’s ‘Making Tax Digital’ the regime for VAT. This is a clear real problem for the profession because barristers lose time to stay updated with the latest changes and additional red tape, and it leaves them less time to concentrate on issues concerning clients, or commercial growth. Barristers think that promulgation of law should cease, so that they can devote themselves to their clients. This is particularly problematic for smaller chambers because these legislations augment their budget, as they do not have the same resources as larger ones. Moreover, long working hours has put wellbeing as a major challenge for barristers.

Past events

Already since 1995, it had been remarked  that there were far more graduates of the Bar Professional Training Course (BPTC) than there were available  pupillages put on the market. Students were left disappointed and in debt, especially those looking to go intoin the competitive criminal sector. The difficulties associated with the introduction of legal aid had been predicted, but the future of the independent Bar was less clear. In fact, barristers experienced in criminal affairs were approaching retirement, so the main concerns were about the succession and the search for talents for criminal Queen’s counsels and judges. These problems were important on one hand, because of the uniqueness of the English and Welsh criminal Bar, seen as a national asset, and on the other hand, the need for the country to have high-level lawyers to undertake the most intricate and grave trials, and elder judges with a depth of criminal experience.

The situation of the Bar since Covid-19

The Covid 19 has worsened the situation and the survival of the criminal bar is now at stake.

The publicly funded Bar, particularly the criminal Bar, has been the most affected.  The publicly criminal Bar depends on fees from the Crown Prosecution Service (CPS) or the Legal Aid Agency (LAA).  The courts have closed because of the pandemic and the hearings have been suspended, adjourned, or refused to be heard  virtually. The barristers are paid at a minimal level for preparatory work. For example, junior barristers will earn £100 for a hearing, but it is a trial that is the base of any bills finally paid. Trials are the only way of earning money.  As a result, 99 % of sets experienced a fall off their activities, while 75% saw their jobs cut by more than 50%. A myriad of deferrals was in addition futile, intensifying the undesirable huge backlog of court cases.

The chambers outside London were the most touched (31%), compared to (16%) within.

81 % of chambers said they would not subsist for more than a year without financial aid, and if the current circumstances were persisting. 67% of criminal sets outside and 90% within London stated that the current measures from Government would not help them either: 29% of chambers did not think to continue to live more than 3-6 months, and 58% not beyond than 6-12 months. 86% of chambers earning their living over half their wage from publicly funded criminal work said they will grow to faint in a period of a year.  60% of criminal sets furloughed clerks and/or other staff, whilst 51% took other urgent measures, as negotiating or giving notice on leases. 30% of sets had to change their plans for 2020-2021 pupillages, 24% were unsure about.

Government support

The position of Chambers can be examined in contrast to other industries which have received sector- wide financial bailouts, grants and assistance such as the hospitality, pubs, or the fishing industry. The financial help eliminated pupils and junior tenants -who were going to start their tenancy in 2019-; and  barristers on or returning from parental or adoption leave who cannot have an income tax return for the 2018/2019 tax year or sufficient incomes for the given period; those with salaries exceeding £50,000 and having significant childcare costs – not deductible from gains – were not qualified for maintenance.  Similarly, to numerous self-employed, a lot of barristers did not qualify for government support. Yet, the preservation of chambers was vital to ensure  access to justice. Financial support was mandatory to avoid the chambers’ disintegration!

When the chambers -25% of all chambers and 27% of criminal chambers- wanted to subscribe to the government program of loans for business interruption caused by the coronavirus; the Bar Council was doubtful as to  whether chambers would be included in the scheme and under what conditions. It  observed that the government should have extended self-employed assistance to barristers who did not have the 12 months of receipts required, by allowing other methods to prove their status and revenues, as 2019/2020 tax returns, letters from chambers, fewer months of receipts or their practice certificates for example. They should also have favoured a deduction of childcare expenses to calculate a possible helping hand.

The chair of the Bar Council, Amanda Pinto QC, blamed the absence of support from the Treasury. 16% of self-employed barristers wanted to left the Bar, while 38% of criminal barristers were uncertain, they will be going exercising law in 2021. The message from the government to the Bar has been that the self-employed should go their own way out of this so that they can continue to support and maintain the justice system. She told: “…all chambers have significant ongoing monthly costs for non-furloughed staff, premises, business rates and other ongoing liabilities to suppliers, utilities, and other service providers. Where is the money to meet these costs going to come from? There is no real drive to rescue people at this point.”… 

Closing chambers

Charter Chambers had to officially close on 30 October 2020. Charter Chambers was a set with 50 barristers, including 6 Queen Counsels (QCs). It was a leading set of criminal and regulatory practitioners for many years. Its barristers were recognized as leaders in their fields. Many of their clients were ordinary people, who mostly depended on Legal aid. Charter Chambers announced its closure early in August, stating that this decision was ‘inevitable’, because the courts were unlikely to return to their normal functioning until government medical advice changed, that a vaccine is found or that additional courtroom is provided.  Neil Hawes QC, head of Charter Chambers, said: “It was this assessment – alongside a review of chambers’ own needs for its future – that led Charter to the unanimous conclusion that to continue as we were doing would inevitably lead us to deplete our financial reserves and result in the set entering into significant borrowing.’ Members were ‘not prepared to engage in such a business risk.”

The barristers complained about courts not being used to capacity, like the Blackstone or Nightingale courts. Amanda Pinto, Queen’s Counsel (QC), the Chair of the Bar Council commented: “it’s just not being used efficiently or sufficiently.” “…The private investment of barristers via their chambers for the training of students is how the country train future civil servants of the judiciary. Chambers ensure every court hearing is covered, making the necessary adjustments even up to 5 or 6 p.m. and later the night before the next day’s list. This ensures economic efficiency as to the running of the courts.  The Criminal Justice system would disintegrate without the partnership of the significant criminal chambers. The defeat of the Government to protect them to remain is sabotaging the country’s aim to encourage the wide social background to become the justice system of tomorrow. Holding on life the criminal chambers will enable them to carry instructing, at their own expense, the young lawyers of tomorrow, and so that some can become magistrates eventually.”

The most touched were people from well-off backgrounds but mostly those from BAMEs. Some students and tenants had to abandon the Bar because they could not afford to pay their rent and lifestyle. Juniors barristers with less than three years of practice were also the most vulnerable if the chambers failed to recover as the law prohibited them from practicing independently. The state-funded Bar, more diverse, here again, BAME and  women were touched, threatening the diversity of the criminal Bar. The Bar council asked the legal aid agency to allow advanced payments (before the end of cases). The Advocates Graduated Fee Scheme (AGFS) model normally wants that payments to be made after the trials. But it would be a temporary solution as anyway, without trials, the lawyers will struggle. It continues to urge the justice ministry and the government to provide immediate support to the Bar. 

The Lord Chancellor and the Treasury must let more self-employed workers access government fund or there may be no one left to represent the victims and defendants of backlogged cases before Covid-19. The government can no longer scorn! It has to review the deliberate neglect whose the justice system is suffering since many times. Bar Council chief executive Malcolm Cree said the representative body is to take out £5m loan as part of the government’s Coronavirus Business Interruption Loan Scheme (CBILS)  5 million is the maximum that can be borrowed to combat cash flow issues.

How barristers could redraw their practice?

67 % of barristers affirmed their practices had grown or remained steady in the last three years and expected their practice to grow or remain stable for the next 3-5 years. The surveyed individuals were at least 41 years old, and this perhaps explained why they are so confident, as they managed to build up their practice over years, but they said to fear for their young colleagues. Despite a big push from the Bar Council to encourage Direct Access, barristers surveyed said that 91% of their work was instructed by a solicitor, 11% doing Direct Access work (by members of the public), 3% cases’ were Pro Bono, and 8% were Licensed Access (by entities). Some said they are reluctant to switch to direct access because they do not want to destroy their long-standing relationships with lawyers. The advantages of working in direct access are that it can be a great development opportunity and, lawyers also have more control over fees as they deal straight with clients. It has also its drawbacks like the absence of infrastructure to manage clients (processes, paperwork, etc.), of a client service when handling client cases directly, and risk of jeopardizing solicitors’ regular work.

The inherent wisdom is to specialize. 62% of barristers work in only one practice area, chiefly in Criminal and Family Bar: 76% of those in Crime only do Crime and 80% of those in Family only do Family. Among those covering more than one practice area, the most common composite is Commercial and Chancery: 56% of those in Commercial also do the Chancery. The second most common medley is Commercial/Professional Negligence and Civil/Personal Injury. 26% of barristers said that a mixed practice was a better way to grow, 44% of barristers still believe that specialism is better, nevertheless, they think that to survive they will need to diversify. The barristers conveyed that one of the main obstacles preventing them from branching out into new areas of practice are the lack of cooperation with other lawyers in the same group, that is to say, they think they need someone – or somewhere – to get advice and learn. 

When asked what support they need to help them to grow their practice: 57% replied develop/improve marketing strategy, 44% collaborate with other lawyers in their group, 36% take training courses, 30% invest in technology – improve/build a website, 29%  more business development focused resources/staff , 25% invest in new business development channels, 21% invest in practical advice and/or research tools, 15% offer mixed pricing models, 13% other, 12% invest in technology – acquire/use a client data system, 11% join a different set. ‘Building/improving marketing’ comes on the top. This is an area where technology can help. There are specific tools which could help barristers in these areas, as generally, they do not have the training, experience, or interest in.

Today, one must be able to use technology to survive in any profession, even the Bar! The way barristers currently make use of technologyies is as follows: 57% for online legal research and guidance 52% document management systems 50% tracking (changes to legislation/ regulation) 48% document review (advanced proofing, clause checker). 84% of barristers said to prefer to conduct their legal research online, while 16% preferred the print format. 97% recognized that technology will be increasingly important in their work.  Growing regulation, rising costs and falling fees mean that lawyers spend less time on their advocacy. Investing in technological tools will not only help them with simple tasks, saving time and money but will also help them with the most critical challenges for a lawyer: stress, resilience and work-life balance, exclusively due to lack of time. As a result, barristers will be able to spend time in the parts of their profession that they prefer and be satisfied at work.

Technology can also help barristers who would like to branch out into new areas of practice. Now, there are tools that make it easy to get a quick overview of a particular area of ​​practice and locate the most relevant legislation and cases in a few seconds, and the most up to date daily. For those who would like to take on more direct access work, tools such as smart forms and templates can assist  with tasks that would normally be incumbent on a lawyer.

Barristers also suggested that in order to diversify, self-employed need to turn more to international work. For commercial barristers, international work overseas is increasingly important.

The future of the Bar is at stake! Rising costs, change to legal aid, regulations, are just some of the challenges barristers were previously facing. Covid 19 has worsened this situation! The courts closed, the impossibility to travel, the barristers found themselves out of work. Several chambers were forced to close down, others asserted they could not last long without financial support. The government has not supported the chambers, and expressed  that the barristers had to find a way out on their own. The Bar Council call for action, and that at least the courts to be used to their full capacity. If it is clear that the situation of the Bar is critical, Christopher O’Connor, Head of Segment Marketing at LexisNexis, has hope

for the future of the Bar. According to him, barristers must change the way they approach the profession to perpetuate their sector within the legal profession. There are  real opportunities for those ready to rethink their practice:  diversification into new practice areas, overseas work, taking on more Direct Access work, or involvement in marketing and business development. Chambers need to consider new tools and legal technology can  free their barristers and staff from manual tasks, thus reducing long working hours, and to hand in new business development.

Barristers can no longer afford to rest on their laurels, nonetheless, they demand help: training and advice to diversify, tools that will help with administration if they want to attempt to take Direct Access work, help to develop strategies to develop commercially.  

~ Laetitia Ponde Nkot, The Student Lawyer