The Times - UK (2020-11-26)

58 1GM Thursday November 26 2020 | the times

Law

5

Barristers outside the Royal Courts of Justice in 1948; some would say that not enough progress has been made since then

Technophobe

barristers are

stuck in past

Adapt or face extinction, online Bar conference

told. Jonathan Ames and Catherine Baksi report

a bomb, but there may not be a need

to worry just yet. Despite the rising

numbers of senior solicitor-advocates,

Amanda Pinto, QC, the chairwoman of

the Bar Council, says that “there has not

been the take-up that some expected”.

Likewise, while Pinto acknowledges

that about 40 per cent of barristers can

now take instructions directly from the

public, that facility “almost always

forms one part of a diverse practice of

which the majority is referral work”.

According to the council, only 5 per

cent of barristers are authorised to con-

duct litigation, and, Pinto says, “rela-

tively few barristers and solicitors have

formed partnerships”.

Despite the law blurring the lines

between the professions, some special-

‘If the Bar continues to

be like this, its survival

really must be doubtful’

ALAMY

Times Law

Editor Jonathan Ames

020 7782 5405 [email protected]

Advertising and marketing

For print and online: Jeanine Kiala

020 7782 7518 [email protected]

An aloof aversion to teamwork; an old-
school insistence on formal instruct-
ions taken through at times belligerent
and self-interested clerks; a woeful lack
of commercial awareness and an
almost proud insistence on being tech-
nologically backward.
The charge sheet levelled at the
supposedly modern Bar is made all the
more damning by the fact that it is enu-
merated not just by one of the profes-
sion’s own, but by one who has risen to
its top rank of Queen’s Counsel.
As the Bar Council wrapped up its
pandemic-enforced online annual con-
ference last week, Shantanu Majumdar,
QC, a commercial and professional
negligence law specialist at Radcliffe
Chambers, told The Times that solici-
tors and clients still hurl that litany of
criticisms at the Bar.
“If the Bar — or much of it — contin-
ues to be like this, then its survival really
must be doubtful,” Majumdar says.
On the face of it, the council, which
represents nearly 17,000 practising bar-
risters in England and Wales, has much
to celebrate — even if it was forced to do
so remotely. Overall, the number of
practising barristers has risen by more
than 6 per cent over the past five years
— and 8 per cent for those who are
self-employed.
But the combination of the Covid-19
emergency and much more endemic
legal aid funding woes mean that the
junior Bar, particularly younger crimi-
nal barristers, is under threat.
Arguably more importantly, evolu-
tionary political moves have gradually
and subtly eaten away at the Bar’s
uniqueness and monopoly position. It

is a generation since first the Courts

and Legal Services Act 1990 then the

Legal Services Act 2007 moved the

entire legal profession in England and

Wales ever closer to fusion in practice

if not in name. Thanks to those legis-

lative reforms, solicitor-advocates can

appear before the highest court in the

UK, barristers can offer services direct

to the public, and they can form part-

nerships with solicitors.

Perhaps the most striking illustration

of the impact of the legal moves to-

wards fusion is the rise in numbers of

solicitor-advocates with rights of audi-

ence in the higher courts, which until

1990 was the almost exclusive preserve

of barristers.

There are now more than 7,100 solici-

tors with higher court certificates, a

figure that equates to about 40 per cent

of the practising Bar — and their ranks

have grown by 25 per cent over the past

nine years.

Those numbers are forecast to con-

tinue rising. One senior solicitor-advo-

cate with higher court rights says that

“training advocates is a way of keeping

work for law firms”. That solicitor-

advocate, who did not want to be

named, no longer instructs barristers.

Indeed, one barrister at the council’s

conference said that virtual hearings,

which have become more common as

part of anti-Covid measures, might lead

to an increase in solicitor-advocacy, as

the fear of entering the court arena was

replaced by the prospect of appearing

from the comfort of home in pyjamas.

Mentioning the “f-word” — fusion, to

be clear — within ten yards of a senior

Bar Council member is like detonating

ist litigation law firms argue that practi-

cal distinctions remain. “Even if the

profession becomes increasingly fused

there will remain a role for highly

skilled and experienced advocates,

whether solicitors or barristers,

employed or self-employed,” says

Robert Coffey, managing partner of

Cooke, Young & Keidan.

Coffey argues that the crucial point

is the need for specialisation. “In high-

value, complex matters it makes sense

for experienced advocates to represent

all parties to a dispute. It is not in the

best interests of a client for a solicitor-

advocate, for example, with compara-

tively little experience on their feet

cross-examining, to perform the trial

advocacy.”

Bucking up the spirits of online dele-

gates at the Bar’s conference was Sir

Geoffrey Vos, who from next year will

take over as Master of the Rolls, the

most senior civil law judge in England

and Wales. Sir Geoffrey, who also leads

the UK jurisdiction taskforce of the

lawtech delivery panel, a government-

sponsored group of experts, encour-

aged barristers to jettison the techno-

phobe image. He told the conference

that the processes of the English courts

— which he said were largely adopted

in the 19th century — must be revisited.

Yet Sir Geoffrey reassured the con-

ference that there was “absolutely” no

risk that the change would lead to a

thinning out of the Bar in favour of arti-

ficial intelligence and robot lawyers.

“Lawyers will not be redundant —

people will need legal advice more than

ever,” he said.

“The challenge for lawyers and

judges is to stay ahead of the game.”

Majumdar concedes that death noti-

ces have been written for the Bar for

years. “People were predicting the

demise of the Bar when I was called in

1992 and my pupil master said the same

thing about his early days,” he says.

“But that does not mean that it might

not one day come true and it certainly

will if the Bar is complacent.”

‘Democracy is in peril if Bar does not reflect society’

A diverse profession in which barristers
use technology to work internationally
and hot-desk from smaller, more
comfortable chambers is the future of
the Bar, its annual conference was told.
Last weekend Amanda Pinto, QC,
the chairwoman of the Bar Council,
which represents nearly 17,000 practis-
ing barristers in England and Wales,
told 350 delegates at the virtual meet-
ing that the coronavirus crisis had
aimed a “high-resolution magnifying
glass” at the Bar’s systems, highlighting
weaknesses as well as strengths.
Despite the “unpredictable and
potentially bleak” economic landscape,
Pinto was confident that with the “most
business-friendly” legal system, some
of the most experienced specialised
judges and one of the most open legal
markets in the world, legal services

would remain a huge contributor to the

national economy. But to avoid a two-

tier justice system between publicly and

privately funded work, Pinto empha-

sised that there must be “proper, sus-

tained funding from the beginning to

the end of the justice system”.

Increasing diversity was a key issue

on the agenda. Katherine Duncan, the

chairwoman of the Young Barristers’

Committee, highlighted research

showing that only 3 per cent of barris-

ters and 1 per cent of QCs are black.

Duncan cited research from the Bar

Standards Board, the profession’s regu-

lator, indicating that female barristers

and those from ethnic minority back-

grounds are likely to earn significantly

less than their male and white counter-

parts. She suggested that the “sink or

swim” approach to career progression

favoured those from privileged back-

grounds and said that unfairness was

reinforced by the way work was allo-

cated and “outdated” marketing and

networking activities linked to alcohol

and sport.

Natasha Shotunde, the chairwoman

of the Black Barristers’ Network, high-

lighted her group’s reports on dis-

crimination faced by black barristers,

including cases of solicitors refusing to

instruct them because of their race.

Baroness Hunt of Bethnal Green, the

former chief executive of Stonewall,

the equality campaigning group, told

delegates: “Democracy is in peril if the

Bar does not reflect the society it serves

because if the public does not trust the

judiciary and does not have confidence

in the judiciary, then our faith in

democracy diminishes.”

While concerns remain for the pub-

licly funded Bar, there was hope that

other areas of work, particularly inter-

national cases, would flourish with the

help of technology that the pandemic

has forced lawyers to embrace.

Tony McDaid, the chief executive at

No 5 chambers, expressed relief that

dire predictions in a Bar Council survey

in April that more than 80 per cent of

chambers (and more than 90 per cent

of criminal sets) would fold within a

year had not yet shown signs of

materialising.

While barristers will continue to

work from sets of chambers, managers

suggested that premises would be

smaller. McDaid suggested that the

chambers of the future might look like

Crucible Law, an online set born this

month out of Charter Chambers, which

closed earlier in the year.

Neil Hawes, QC, the head of Cruci-

ble, emphasised that it would not be

entirely virtual, and will be seeking a

small base. He said: “Experience told us

working remotely can be incredibly

isolating and doesn’t provide the

essential mentoring or support that

chambers does.”

Catherine Calder, a joint chief execu-

tive of Serjeants’ Inn, which reduced its

floor space by 20 per cent before the

pandemic and implemented hot-desk-

ing, said the “office environment is far

from over”. But she says chambers will

no longer be a “default destination” for

barristers. To compete with the com-

forts of home, Calder predicted cham-

bers will undergo a “hotelisation”, with

more greenery and soft furnishings.

Catherine Baksi