Future of the Employed Bar (employed barristers)

According to the Bar Council, "About 20% of barristers practising in England and Wales are employed barristers in the public or private sectors" and "A growing number of barristers are employed by solicitors' firms. Barristers can now act in a dual capacity (supplying legal services as both a self employed and employed barrister) and can compete for partnership."

http://www.barcouncil.org.uk/becoming-a-barrister/practice-options/employed-bar/

I've always wondered, why aren't more barristers being hired by law firms, in their Dispute Resolution departments? Wouldn't it be great for law firms to have their own advocates, who would take a case from client's instructions all the way to the courtroom? This is perfectly normal in jurisdictions with fused professions.

I know the whole barristers' industry is about being self-employed and all that, but are there any specific rules preventing law firms from simply hiring loads of barristers, offering their advocacy capabilities and driving chambers out of business. This will destroy barristers as a profession, but it'll also solve the acute lack of pupillage positions for those who want to be advocates (who cannot get entry into this "elite" club)!

Or is it simply because the barristers' lobby is too strong?

Essentially I'm wondering why the legal profession isn't fused and the distinction between barristers and solicitors eliminated totally. If its about conflicts, lawyers in other countries deal with conflict of interests on a daily basis, perfectly fine.

Thoughts?

Reply 1

nulli tertius

Original post by Alphabet678

The barristers' competitive advantage is low overheads. A law firm using in house advocates will probably still split the work.

I know the whole barristers' industry is about being self-employed and all that, but are there any specific rules preventing law firms from simply hiring loads of barristers, offering their advocacy capabilities and driving chambers out of business. This will destroy barristers as a profession, but it'll also solve the acute lack of pupillage positions for those who want to be advocates (who cannot get entry into this "elite" club)!

Watch this space. This just about describes what is going to happen to the criminal bar.

Reply 2

Crazy Jamie

Careers Forum Helper

I've always wondered, why aren't more barristers being hired by law firms, in their Dispute Resolution departments? Wouldn't it be great for law firms to have their own advocates, who would take a case from client's instructions all the way to the courtroom? This is perfectly normal in jurisdictions with fused professions.

Some firms do have prevalent in house advocacy teams, such as Lyons Davidson. Though usually those advocacy teams are not fully qualified barristers, rather they are effectively paralegals who attend interlocutory hearings. It is also worth mentioning that in house barristers do not take a case from instructions to the court room; in reality they are instructed at specific points much as self employed barristers are. If barristers could competently take any client's instructions and run that case through to trial we wouldn't need solicitors. But we do, because barristers are not trained to do that.

There are several reasons why that would be unlikely to work. The first is that, particularly in civil law, firms are not willing to pay the wages that they would need to pay barristers in order to tempt them from self employed work. I mentioned advocates who are essentially paralegals above; firms can pay those advocates around £20,000 p.a. quite comfortably. You would need to pay practising barristers significantly more than that to have a chance of recruiting them, and law firms just aren't willing to spend that sort of money on relatively little benefit.

The other reason is that the logistics of your theoretical situation don't work. Let's assume that a massive firm such as Irwin Mitchell decided to recruit a team of barristers and 'drive Chambers out of business'. They are a big firm, but they are only one firm. To destroy the self employed bar the majority of firms would need to go down a similar route, and many either can't afford or wouldn't be willing to do that.

Besides, why would solicitors wish to destroy the independent Bar? Barristers and solicitors are not naturally competing professions; they complement one another and are reliant on each other to a lesser or greater degree. But they do not usually compete. In fact, most solicitors will tell you that they feel that they get great benefits from instructing barristers, so they would actively want to avoid self employed barristers being eliminated.

And as a final point, your assertion about it eliminating the pupillage problem is also wrong. There is nothing in your theory that would suggest that the amount of work would increase. Even if all self employed barristers ceased to exist and every barrister was employed, that wouldn't increase the number of barristers across the board. The number would stay the same, so it wouldn't solve recruitment issues for those who aspired to be (employed) barristers.

Reply 3

Kessler`

Maybe circumstances will conspire to make me eat my words, but there is no way I would want to be an employed barrister. Gone would be my freedom, my variety and the control I have over how/when/why I prepare my cases. Crazy Jamie is right in that firms would have to pay a hefty salary to tempt the best away from self employed practice. The reality is that those who do enter the employed bar as in-house barristers etc do so either because their personal/family circumstances mean that the self-employed life is not manageable (think of those with young children etc) OR they are not getting the quantity or quality of Instruction that would keep them afloat in chambers. If they are of the latter, as they more than often are, then the benefit to an employer is debatable. The quality of advocacy can often turn a case, particularly in Highways Act cases/civil trials where there is a discretionary point for the judge to take.

I sense a somewhat bitter tone in your post, although I'm prepared to be mistaken on that. The pupillage system is hard. The chances are very slim. The reality is that too many people are funnelled through the expensive courses who have not a hope in hell of getting pupillage. The only winners there are the course providers. Simply put, you cannot have everybody who 'wants' to be a barrister given the time-consuming and detailed training/gateway that pupillage provides. It is not practical. What annoys me is that other professions/vocations don't have the same attitude problem. I never hear trainee vets complaining, although I gather their system is similar - you take the course and then you get a placement with a practice which is not dissimilar to pupillage. There is a shocking sense of entitlement amongst legal trainees - 'if I cannot get in then the system must be wrong'.

To pick up on another one of Crazy Jamie's points - there are few solicitors (ESPECIALLY in PI cases) who think that counsel are redundant. It is very useful for them to obtain an advice on a case, particularly at an early stage, so that if anything goes wrong the finger of blame can be pointed elsewhere. Furthermore, certainly at the junior end, instructing counsel will often work out much cheaper than for a solicitor to do the work. One fee to cover preparation and advocacy and any other (as there usually are) problems which crop up, as opposed to an hourly rate split into strict 6 minute units.

Reply 4

Crazy Jamie

Careers Forum Helper

Original post by Kessler`

Furthermore, certainly at the junior end, instructing counsel will often work out much cheaper than for a solicitor to do the work. One fee to cover preparation and advocacy and any other (as there usually are) problems which crop up, as opposed to an hourly rate split into strict 6 minute units.

This is another important point, and comes back to the low overheads point that nulli tertius mentioned. Let's take a small claim as an example. You'd pay about £250+VAT for a junior barrister to attend your average RTA small claim hearing. That's an all inclusive fee including preparation, travelling, waiting at court, doing the hearing, and writing a note or similar afterwards. For the sake of argument let's assume you can find a Grade D fee earner to do a small claim for you. Even at National 2/3 rates that is £111+VAT per hour. The chances of preparing for trial, travelling to and from court, waiting at court, and the hearing itself all lasting under two and a bit hours are virtually nil. Often travel alone will take longer than that. And that is with the lowest grade of fee earner, and realistically a client is always going to prefer a barrister to a Grade D fee earner in any event.

That's just one rough worked example, but it makes the point quite well that barristers are actually very good value for money, when it comes to civil law at least. You can tweak the figures with fast track cases and such, but you'll tend to find that that value remains, even when you don't factor in the barristers' expertise as trial advocates, which obviously may make them more desirable even if they did cost more than a solicitor attending trial.

Reply 5

FindFixStroke

I have been self-employed and I am now an employed barrister. I am in a very specialist area, and being in house at a law firm allows me to practice at a higher level - for now.

My hourly rate in house is roughly three times that of a junior of my call at the independent bar. However, the benefit to the client is oversight - senior partner involvement, and scale - I can use trainees or regional solicitors to carry out work at a cheaper rate. There is also a team, so if I am ill or unavailable, someone else can pick up my work and complete it.

Hours are about the same, except that I probably work a little later in the evenings in employed practice. However, the flip side is that I do not work weekends anymore. If I work late, I get a taxi/supper paid for. Add in paid holidays, pension and a regular income, and it's a pretty good deal. I have compared my package to my friends in chambers in my area of law, and I think I am roughly 25% better off financially.

However, I miss the ability, however illusory at times, to say no to work; to work when/how I want; and not have to deal with big firm administration. I think the earnings differential swings the other way at senior junior level, unless I get partnership, and I do not get as much advocacy as I would like. Ultimately, I think the working life of a silk/very senior junior at the independent bar is more pleasant that a partnership at a decent MC/SC/global law firm.

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