Broken glass. It’s just like glitter, isn’t it?

The furore that surrounded the leaked CPS e-mail which revealed that they were putting costs savings before justice has died down a little. I put forward my own thoughts on this embarrassing revelation in my last post The Truth is Out There. I promised a follow up which would look at how I think the situation could be improved. Just in case it isn’t obvious that forms the subject of this post.

Before I wander off into my own thoughts I ought to set out how I see matters:

• The CPS are committed to using their own advocates because it saves money, they aren’t about to do a huge u-turn.
• The CPS have been subject to the same swingeing cuts that all government funded agencies have and cannot throw money at their problems to resolve them. 
• The CPS can point to the savings they have made of proof of the effectiveness of their strategy but I think there are knock on effects causing higher costs elsewhere in the criminal justice system which have not been quantified.
• The criminal justice system is in a sorry state due to cuts, poor high level management, poor use of technology and a host of other issues.
• The way advocates are remunerated does not work as it should.

When I first started clerking, the CPS operated in much the same way as solicitor’s firms. Case workers handled the preparation of the case and instructed counsel at the very outset of the case. The CPS grading system meant that cases were properly allocated to a barrister with the correct level of experience and skills to handle the matter. There was therefore a team allocated to run the matter through the court process; the case worker and the barrister. If the barrister failed to properly prepare, performed poorly at court or frequently returned cases with little notice then that barrister would find his work from the CPS suddenly drying up.

Now it appears that the CPS use their in-house advocates to deal with the vast majority of the initial crown court hearings (plea and case management hearings or PCMH). The cases are not allocated to a specific advocate and so are often poorly prepared prior for trial. Because the case may only be allocated to an advocate the day before a trial it allows little time for problems to be rectified and this can cause wasted court time as cases have to be adjourned or else are dealt with by a very late guilty plea (known as a cracked trial). If an in-house advocate performs poorly there is, at least from the evidence I have seen, no sanction for poor performance.

The report by HM CPS Inspectorate of March 2012 has much to say on this subject:

• Effective preparation for trial is important in every case.
• The original Bar/CPS framework committed the CPS to identifying cases that are likely to be contested and selecting the trial advocate as early as possible, preferably 14 days before the PCMH to ensure advisory work and case preparation can be undertaken.
• Where counsel is instructed they should wherever possible conduct the PCMH.
• These key principles are only adhered to in the most serious and complex cases.
• Only a small percentage of cases are allocated with any consideration of continuity of advocate.
• A high proportion of PCMH are covered in-house, work is often allocated the day before the hearing.

The report also states that the training and development of in-house advocates is not what is should be. The crown advocacy training for in-house advocates in 2010-11 saw only 45 reach the required standard from a field of 248, a failure rate of 71%. The course is supposed to teach the minimum standard required but is seen by those who attain it as the only way that cases should be presented. This produces “formulaic, mechanical advocacy which is dull, lacklustre and repetitive”. When considering the importance of the presentation of a case to a jury this is a fundamental problem. Ongoing development via in-house training is erratic depending on which local CPS office is involved and 35% of in-house advocates felt they did not have sufficient support with a worrying 10% feeling that they lacked the necessary skills to perform the role. There is a limit to what you can learn in the class room and the report points to the need for in-house advocates to undertake more trial advocacy. This however does not happen and what little is learned from in-house training is seldom tested in practice with in-house advocates completing on average less than four effective trials per year.

This is where the Bar truly excels, in it’s initial and ongoing training. Throughout pupillage a barrister will see a vast range of cases and advocacy styles. Pupils review case papers, prepare advisory documents, attend advocacy training courses run by the Inns of Court and learn on the job. During the second six months of pupillage they will undertake lower level cases, usually in the magistrates courts, to put into practice what they have seen and been taught. Gradually as they gain experience and skills they will progress onto more complex cases and start to appear more regularly in the crown court. Surrounded by colleagues with vast collective experience, a junior barrister will learn from all around.

The effect this lack of proper training and development is clear and the report offers these observations:

• There has been an overall decline in the performance of in-house advocates dealing with non contested hearings, primarily PCMH, since 2009.
• In-house advocates were not adept at identifying what information a court would require at a non-contested hearing or anticipating what questions a prosecutor might need to answer.
• In-house advocates frequently fail to be of any real assistance in sentencing, leaving the dialogue to defence counsel and the judge.
• The acceptance of inappropriate pleas was an area of concern, particularly in relation to recording of basis of plea.
• In trials opportunities are missed during cross examination and speeches.
• There are failures to challenge clearly inadmissible and prejudicial evidence.

This presents a fairly bleak picture. Work is poorly prepared and allocated in such a way that it is near impossible for an advocate coming in at the last minute to properly prepare and rectify any problems. In-house advocates are not as well trained and mentored as the Bar and the standards of in-house advocate’s skills are declining creating a greater gulf between the two. Just to really hammer the final nail in the coffin the report has this to say on the a hidden impact of the way work is allocated “the junior Bar is suffering now from inexperience and they are not all developing as quickly as they should . The effect of reduced agent usage in the magistrates’ courts and the limited work at levels 1 and 2 in the Crown Court is beginning to show in terms of the quality delivered”. The way that work is allocated is failing to develop in-house advocates and the junior Bar which in future will inevitably mean lower standards of prosecution advocacy.

Leaving aside the obviously higher standards of training that the Bar provides, what is clear is that the management of the allocation of CPS work both to in-house advocates and to self employed counsel is deeply flawed. I think I have spotted what the problem is and it is so very simple, the CPS don’t employ barrister’s clerks.

Clerks manage diaries to ensure that wherever possible the instructed barrister retains the case throughout. Clerks harry, harass and harangue crown court listing offices to do all they can to make sure that counsel who dealt with the trial can attend at the sentence. Clerks allocate work based on the skills of the barristers they have available and when it is clear they don’t have someone with the right skills they find someone from outside chambers who does. Clerks gently nurture barrister’s careers; starting slowly with summary trials and traffic courts, moving on to crown court appeals, mentions and sentences, progressing onto low level crown court trials such as thefts, possession of drugs and ABH, incrementally guiding a barrister to the most complex of cases.

The CPS need clerks. Real clerks with an understanding of how to manage a diary and how to allocate work to make costs savings whilst at the same time progressing careers and ensuring that justice is properly served. Maybe the CPS could grow their own as they are attempting to do with in-house advocates, but initially they need some external assistance.

The CPS and the Bar need to get together and plan how to unravel this messy tangled ball of poor management and mistrust. A transparent plan which tells all how the CPS and the Bar will work together on ensuring that the prosecution of cases will focus on being cost effective whilst at the same time ensuring that all who prosecute are highly proficient. The need for succession must be addressed and future in-house advocates and self employed barristers must be certain of a future which ensures both have the tools to the do the job and access to the right sort of work to allow them to progress. Some joint commitment to training with in-house advocates being sent on some form of non-practising pupillage in chambers. Pupils could go to the CPS on secondment and learn how crown prosecutors do their job to better understand the processes involved.

Some of the problems the Bar and the CPS face with the allocation of work and the continuity of advocates are caused by the court service. By working together with the courts a better system of case management could be developed to ensure greater continuity. The judiciary would doubtless be keen to have well presented cases before them and would lend their weight to any well considered proposals.

The DPP has quite rightly got egg all over his face due to that e-mail and the disastrous CPS strategy it has revealed. The Criminal Bar Association rather than pointing and laughing should hand him a towel and extend the hand of friendship. Only by working with the CPS will the criminal Bar be able to ensure that the future is not bleak for those who prosecute.

The Truth is Out There

Criminal barristers have long discussed the conspiracy theory that the CPS creams off the good and the easy for it’s own in-house counsel and farms out the low end and the messy to Bar.  This is however not some crazy theory borne of the heat oppressed brains of the paranoid Bar, there is actual documentary proof that this is CPS policy. (Taken from an article from CrimeLine).

The Criminal Bar Association are quite rightly up in arms about this as can be seen from their blog post – The Culture within the CPS exposed.

The DPP has  in turn promptly responded:

“The e-mail in question should not have been sent and categorically does not reflect the CPS policy on allocating cases to advocates. The circulation of the e-mail was small (about 43 recipients in an organisation of over 6,000 staff), it only covered advocates dealing with cases in North London Crown Courts and its existence was short-lived (it was dated 15th January 2013 and was withdrawn on 19th February 2013). I have had assurances from all Chief Crown Prosecutors across England and Wales that no such or similar scheme has been operated elsewhere in the CPS. I am disappointed that the e-mail was sent and I have assured the Attorney General, the Bar Council and the Criminal Bar Association that I will ascertain how it came to be sent and revert to them on the matter.”

At first blush it seems a storm in a tea cup. No need to panic, some maverick Crown Prosecutor has gone bonkers, hardly anyone really saw the e-mail anyway, nothing to see here move along. I repeat the words of the DPP that it “categorically does not reflect the CPS policy on allocating cases to advocates.”  That clears all that up then.

Well it would if it was only evidence of a standard CPS approach to maximise cost savings by unethical management of the allocation of work.

In a report by Her Majesty’s Crown Prosecution Service Inspectorate dated March 2012 the true nature of the impact of the CPS policy is laid bare:

• The advocacy strategy has delivered net savings of approximately £26 million across the last five years
• Crown advocates are not managing to develop their experience of trial advocacy in part due to ….. the high levels of cracked trials on the day in the cases allocated to them 
• The average number of effective trials completed by a crown advocate is less than four a year
• There are failures to challenge clearly inadmissible and prejudicial evidence
• A number of advocates still have an over reliance on case notes, this can have a negative impact on the conduct of the trial
• Legal submissions are not always timely or supported by reasoned oral argument
• The continued focus on financial savings has resulted in …… late instructions to self-employed counsel who do not have time to remedy poor preparation

In short according to HM CPS Inspectorate the CPS advocacy strategy saves money but at a cost to quality and a failure to improve the skills of crown advocates. The report details a long list of recommendations and also takes a long  look at how effective the cost savings are in reality.

The cynics may say I only picked out the points out of the report that assisted in proving the theory that the CPS are choosing cost over quality. The same convenient editing could also be said of the DPP who responded to the report stating:

“The report rightly highlights our commitment to quality advocacy and a number of areas where the CPS has improved this quality. Our increased use of in-house advocates has resulted in significant savings since 2006 and at the same time the overall quality of advocacy has remained high.”

It’s a bit like those DVD boxes that say “truly gripping” but the full review said “the only truly gripping part of this film was whether I would stay awake until the end”.

What is clear is that the quality of advocacy and case preparation is sacrificed for financial saving and this is commonly happening in more complex cases. Cases which are likely to crack are retained in-house to save costs but this hinders the improvement of crown advocates. This knock on effects are many but the most important is that justice may fail to be done.

N.b. I am a clerk and as such I always like to look for a solution rather than just pointing the finger. I am therefore working on a follow up piece where I look at how things used to work and how they work now. If you have read any of my previous posts you will know that I have a fondness for looking back and comparing the past to the current. I will also throw my hat into the ring and offer my own humble opinions of how I think things could be improved. It may however take a while to collate my various thoughts together so this follow up may be a few weeks away.

The best things in life are free, but I want SCT (That’s what I want)

The new Standard Contractual Terms (SCT) are causing a bit of a kerfuffle between barristers and solicitors. What’s that you say, at a time with the legal profession facing unprecedented attacks from all around them they are having their own private scrap. Well maybe. I’m not so sure if this isn’t a scrap between the representative bodies; the Bar Council and the Law Society. I believe that their respective memberships will deal with the challenges of the new SCT rather better.

In a nutshell the Bar Council have introduced standard terms of engagement which all barristers are being strongly advised to use when instructed by solicitors in order to govern their professional relationship. The problems stem from differing views of some of the specific terms. In reality there is one huge issue which stands out from all the rest that of payment terms. I am going to concentrate on that most thorny of issues.

For the last 25 years the relationship between barrister and solicitor has been governed by The Terms of work on which Barristers Offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988. The scheme states:

“By the established custom of the profession a barrister looks for payment of his fees to the solicitor who instructs him and not to his lay client“

and

“a solicitor is personally liable as a matter of professional conduct for the payment of a barrister’s proper fees whether or not he has been placed in funds by his lay client“

If a solicitor could not or would not pay the barrister could, after sending certain properly phrased reminder letters, report the matter to the Bar Council. They would then investigate the matter and send a very stiff letter to the Senior Partner of the firm of solicitors. If this elicited no response then the firm would be (dan dan dahhhhn) blacklisted. The firm would then find they were forced to pay in advance for all barristers fees in future as the Bar Council would inform all chambers about these cads and bounders. There is an obvious flaw to this system, the barrister who reported the firm would still not have been paid. Never mind I am sure the warm glow he got from ensuring none of his fellow barristers suffer the same fate keep him warm at night.

Once you get beyond the poor chap who didn’t get paid this doesn’t look like a bad system, someone gets burned but the majority are protected in future. There was a bit of a problem. It took a very, very long time to get to the point where a firm was blacklisted. First you have to send the obligatory reminder letters. This process, allowing for time for responses, took a minimum of three months. Then you would send off your report to the Bar Council and it would take them about 12 months to leap into action. I am sure that in times gone by this process was much swifter but a steady increase in solicitors being reported for non payment must have put a strain on the Bar Council fees collection department.

• In 2011 the Bar Council¹ received reports from barristers concerning 2,315 unpaid fee notes which totalled £5.2 million.
• In the same year £2.5 million was recovered.
• This left £2.7 million in unpaid fees.

 The new Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised Persons 2012 (to give them their full title) include a couple of very important clauses:

12.6 If the Invoice remains outstanding more than 30 days from the date of delivery, the Barrister is entitled:

12.6.1 to the fixed sum and interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;

12.6.2 to sue the Authorised Person for payment

To my mind in strictly commercial terms this seems pretty sensible. I provide a service if you don’t pay for that service I can seek redress through the courts and charge interest on the unpaid fees for the delay in payment.

The SCT replaces the old Withdrawal of Credit Scheme and so if no terms have been agreed between barrister and solicitor there is no means of redress for an unpaid fee. Barristers have no choice, fail to agree terms and you risk not being paid for the work.

The Law Society provided a practice note to it’s members with a view to varying some parts of the SCT. This guidance was released on the 24th January 2013 only 7 days before the SCT were due to commence. The Bar Council first posted the details of the SCT on their website on the 2nd August 2012 with a planned date of introduction of the 31st October 2012. This date was pushed back to the 31st January 2013 to allow proper time for preparations to be made.

I do not know what has happened here but 3 months notice, which was then extended to 6 months notice, of this seemingly huge change seems plenty of time for all concerned to properly prepare. Whether the Bar Council and Law Society have not properly communicated with each other or whether one or other or both has failed to act promptly is not something I can comment on. What is clear is that someone has cocked up. Why could terms not be agreed by both representative bodies prior to their launch?

The Law Society practice note was very swiftly followed by Bar Council guidance on the proposed revisions. There are all sorts of issues around liability and insurance but I don’t want to get bogged down in the minutiae of all the clauses in dispute. The issues they present seem legal and fundamental and will need to be settled by the representative bodies. The issue regarding payment of fees seems less important but is in fact the real crux of the matter. The Law Society states:

“Clause 12.4 requires the solicitor to pay the barrister’s invoice within 30 days irrespective of whether or not the solicitor has been put in funds by the client. While this broadly reflects the existing position whereby solicitors are liable for a barrister’s fees whether or not the barrister has been put in funds, it is open to you to agree that the barrister should not be paid until the solicitor has been paid by the client. Any such agreement should be recorded in writing”

The advice to solicitors seems to be whilst you are liable for the barrister’s fees you can use this opportunity to pass that liability back to the barrister. What course of action does the barrister then have if the client refuses to pay the solicitor. The barrister cannot sue the client and the variation to the terms which the Law Society recommends is :

“the Authorised Person shall not be liable for the Barrister’s fees until the Authorised Person has been put in funds by the Lay Client, the payment provisions of the Agreement shall apply only from the date upon which the Authorised Person has been put in funds by the Lay Client in respect of the Barrister’s fees”

So the barrister has no way to escalate the problem if the fee is not paid. In it’s present form the amendment proffered by the Law Society seems unlikely to be adopted by the Bar.

This is by no means a straight forward issue. In some cases it can be extremely difficult or even impossible for the client to put the solicitor in funds prior to the case being heard. As the senior clerk of a specialist family set I see the problem on a daily basis in matrimonial finance cases. In cases where the clients are not cash rich and rely on the division of assets, which are subject to dispute and can often only be liquidated at the conclusion of the case, there are no funds immediately available. The most obvious example is the former matrimonial home. The solicitor is aware of the client’s financial situation but is also aware that once the assets are divided the client will have no difficulty settling the bill. There are two fundamental problems with this type of situation. First and foremost the property market is not particularly buoyant and sale of a property can take an indefinite amount of time. The second problem is that solicitors do not always make the barrister or indeed his clerk aware that settlement of fees is subject to the sale of a house.

The SCT can be amended on a case by case basis and if some appropriate wording could be agreed between barrister and solicitor situations such as these could be managed.

The excellent Catherine Bakshi of the Law Society Gazette published a piece on 25th January 2013, Society and Bar clash over new standard terms, and in itself is well worth a read. What are particularly interesting to me are the comments. The vast majority of those who have commented can see no issue with ensuring funds are in place in advance of work being completed. One or two even explain the need for transparency with barrister and clerks where there will be difficulties in paying within 30 days. It seems that in a very brief straw poll the membership of the Law Society see no great problem. There are those who disagree and whilst buying power threats are all well and good, what if all barristers stand firm and there is no option but to agree to the terms? Do the work yourself, surely if you could do it yourself there would be no need to outsource it to counsel.

The relationship between barrister and solicitor has shifted enormously since I first started clerking. Back in those happy halcyon days solicitors did far less advocacy and drafting preferring instead to outsource the work to counsel. Barristers dealt with cases from initial advice all the way through to final hearing. If some portion of the fee was not recoverable then a barrister would probably “share the hit”.  Now barristers perform a different role, often parachuted into cases which have become overwhelmingly complex or where a solicitor feels a fresh aspect on the case is needed. Barristers are routinely used as temporary staff to cover sick leave or holidays where no fee earner is available. In both such circumstances a barrister’s input may be limited to attending one hearing. The solicitor may have been paid a large portion of his fees on account as the case progressed. Why should a barrister potentially take the risk of a hit on 100% of his fees where the solicitor is only taking a 25% hit?

Barristers and clerks alike do not fully appreciate the difficulties that solicitors have in keeping clients happy whilst at the same time ensuring they get paid for the work done. I do not envy the difficult position they find themselves in and I am sure it is incredibly frustrating to perform a service and not be paid.

Where does this leave us? There will be some difficulties in getting standard terms that both barrister and solicitor agree but it will happen. A few difficult questions need to be asked of both representative bodies.

Why after a decade of debates are both representative bodies (who make their respective livings settling disputes) still so far apart?

Why were solicitors only given guidance by their representative body only 7 days before the new terms began?

When it was clear there was a problem why have the LSB not stepped in to resolve the matter?

¹The Bar Council Annual Report 2011/12

n.b. The problems of payments between solicitor and client and barrister are multi-faceted. I have given very limited examples and many other alternatives could be put forward. The point is that the Standard Contractual Terms do not need to be standard for all. Each barrister within a chambers can have their own terms. The terms can be varied by firm, by solicitor, by case. It is simply a matter of open and honest negotiation, something I would expect legal professionals to do with ease. The Law Society also recommend an amendment to the terms that the solicitor be allowed to withhold payment if the client complains. The Legal Ombudsman has the power to order a fee to be repaid in part or in full if a complaint is upheld. I have had three cases go to the Legal Ombudsman and all three no wrongdoing was found and yet the barristers in all three cases had to wait close to a year to be paid. There is no need to include this clause. As with all of my posts it is written from my point of view. I care about my barristers being paid for the work they do and this is therefore the focus of my post. Cleverer chaps than I can argue about intellectual property and liability.

The Cab Rank Rule – What is it good for? (Absolutely nothing?)

Before anyone jumps down my throat there is a question mark at the end of “absolutely nothing”. I am asking a question; does it serve any purpose or is it an ideal which is rarely really honoured.

I decided to pen this post in response to some research commissioned by the LSB - The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market. There has been an bullish response from the Criminal Bar Association and an excellent response by @Familoo aka Lucy Reed - A Trickle Not a Flood. There has also been a typically measured response from @RichardMoorhead aka erm Richard Moorhead - Cab Rank Rules or Bar Room Brawls? My input is from the view point of a clerk, someone who is entwined within the subtleties of the Cab Rank Rule on a day to day basis. I hope it provides a slightly different view.

What is the Cab Rank Rule?

It is an ancient and honourable part of being a barrister. It states that a barrister must always accept instructions no matter how despicable or vile the client is, if the client has opinions or beliefs which churn the stomach and even if the client is funded by (put your rubber gloves on) legal aid.

Seems fair enough. No matter what I think of you, of the person you are, of the nature of the case, or how your case is funded (get your rubber gloves it means legal aid again) I will represent you.

Incredibly noble.

There are a few exceptions. I have highlighted the main ones below.

A barrister can refuse instructions:

1. if he lacks sufficient experience or competence to handle the matter (seems about right)
2. if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do (again seems fair)
3. if there is a conflict of interests between him and the client if he were to act (lots of different examples of potential conflicts are given and all are valid)
4. if he isn’t going to be properly paid or isn’t going to be paid at all (except for publicly funded matters – though this no longer includes crime or family)
5. if the work involved is more than a barrister would undertake in a normal year (fair enough, if it will potentially ruin your life you don’t have to do it)
6. where the potential liability for professional negligence in respect of the case could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for him to accept (this is a really interesting point)

Before I go further let me explain that I am looking at this from a clerk’s point of view. Have a guess how many clients I want to turn away? Yup, you guessed correctly – none. It’s my job to find my barristers work, why on earth would I want to wangle them out of cases. Do you know how much I get paid in clerk’s fees for cases I turn away? Yup, you guessed right again – nothing. Why would I want to be paid nothing?

Now I have explained the economics of the situation it may help to look more closely at the exceptions and see if I can provide some clarity with some real world examples and where a clerk would want to invoke the mystical veto.

These days the Bar is pretty specialist. When I first started clerking most barristers were general advocates and would use these skills is a wide range of courts and cases. The esoteric nature of this work meant they could be described as jack-of-all trades. The modern junior barrister¹ is usually much more specialised and will usually practise in only one key area of law. In such an environment it is the norm to refuse instructions on the basis that you do not possess the necessary skills to perform the task.

For example I clerk a specialist family set and so if I get a call from a solicitor asking for a barrister for a criminal case I direct them to the specialist criminal set of chambers down the road. The last time any of my guvnors did any criminal work was in the last century and since then various governments have made a few changes to the law. For any of my barristers to act in criminal proceedings would be potentially negligent. Occasionally a situation arises where a junior member of the Bar has been instructed for a case which they consider to be beyond their level of experience and expertise. Again it is perfectly acceptable to refuse instructions for that barrister.

There is also a point to be made here on the source of all instructions which are governed by the Cab Rank Rule. No instructing solicitor worth his salt would instruct a specialist family barrister on a murder trial. Generally there is no need to quote the Code of Conduct 602(a) at your instructing solicitor as a means of refusing instructions as they wouldn’t want to brief counsel who wasn’t up to the task. So the first exception is both common sense and without dispute.

The second exception is a handy catch all. If you had a barrister who really didn’t want to deal with a case you can always say “sorry John,  because of his diary over the coming weeks Mr Ponsonby-Smythe will struggle to properly prepare your case and feels he would be letting you and the client down were he to continue to act”.  But I still don’t understand why a clerk would be using this out other than if the issue were a double booking an issue I deal with later in this post.

I am not going to bother with the conflict of interests points. They are bloody obvious and will always apply.

The issue of fees is a funny one and raises some extremely uncomfortable positions.  The basic principal is sound. If you aren’t willing to pay an appropriate fee the barrister can refuse the case. There is a popular anecdote about just this position. George Carman QC didn’t like dealing with libel cases and asked his clerk to avoid them in future. The only real escape from the Cab Rank Rule available was through the level of fee so his clerk started requesting a £50,000 retainer fee for Mr Carman QC to consider dealing with the case. It didn’t work as clients were willing to pay it and Mr Carman QC and his clerk weren’t daft and took the money. This story may be a load of codswallop but I bet there is a grain of truth contained within its mythical depths. I would guess that rule 604 (b) is the one most commonly used in avoiding the Cab Rank Rule.

Much of what comes next revolves around legal aid and so you may want to don your rubber gloves for the entirety of this next section. To me this is the real crux of the matter and this is where barristers may look a little shame faced as the Cab Rank Rule loses a deal of its nobility.  Those in society who most need the Cab Rank Rule to exist to ensure they have some measure of access to justice are those who cannot afford legal representation. They can in many instances receive legal aid and be funded by the state. The Cab Rank rule clearly states that you must represent clients even if they are funded by legal aid. Unless of course the case is a criminal or family case. Criminal and family graduated fees were deemed not to be a proper professional fee and so barristers undertaking such work are not compelled to accept instructions under the Cab Rank Rule.

Am I missing something here? Does this not seem completely contrary to the noble idea of the Cab Rank Rule that there should always be representation for those who need it providing you get paid for it? If you don’t want to do legally aided work then don’t do it. I have no problem with that but you shouldn’t be able to cherry pick and deal only with the cases that provide the highest revenue. Much is being made of Chris Grayling’s² indication of future cuts to legal aid and the response of the Bar has been clear; a two tier justice system and a second class service for the poor. There is already scope for that because of the way some types of legally aided cases are dealt with under the Cab Rank Rule. Clients who can afford their own representation can potentially have their pick of all appropriate barristers but legally aided clients potentially can’t³. It is worth noting that de-deeming of criminal and family cases only occurred in 2003 and 2001 respectively and this was in response to a series of funding cuts.

It doesn’t seem quite so noble any more.

The point about professional indemnity insurance is a really interesting one and it can have a huge impact. As a specialist family set we sometimes deal with high net worth clients in divorce cases. The actual value of assets can vary greatly and so having appropriate indemnity insurance in place is not straight forward. A barrister may receive a request for representation from a client with assets worth £25 million but his current indemnity limit may only be £5 million. To increase the limit may cost say £1,000. That doesn’t seem like a problem at first glance as the fee involved should easily cover that cost. The only problem is the barrister needs to increase his cover so that it lasts for 6 years after the conclusion of his involvement to allow for any negligence claim and the statute of limitations. So now the barrister is looking at paying out at least £6,000. What if the client has an initial conference and then decides he doesn’t like the barrister’s advice? You have a very unhappy barrister.

There seems to be a desire to link the Cab Rank Rule and that darkest of all clerking arts, the managing of double bookings. The two are not related and should not be thought of so. If a clerk is trying to get a barrister out of a case in order to do something else the Cab Rank Rule is irrelevant providing the switch can be justified.

To clarify paragraph 610 (b) states that a barrister cannot return instructions to another barrister without the consent of the client and 610 (c) states he cannot return a brief which he has accepted and for which a fixed date has been obtained or (except with the consent of the lay client) break any other engagement to supply legal services in the course of his practice so as to enable him to attend or fulfil an engagement (including a social or non-professional engagement) of any other kind.

This seems pretty cast iron. If you accept the instructions and a date is fixed and it clashes with your daughter’s wedding day you can’t withdraw unless the client agrees. It would be a pretty cruel client who wouldn’t release you or court who couldn’t move the date. But what of a clash with another case. It seems clear, once you accept instructions and the date has been fixed you are stuck with it no matter what.

Well not quite.

There is other guidance which deals with the situation where a clash of cases occurs. I have highlighted a couple of key sections which are the most telling.

The following guidance has been issued to assist Counsel in making that decision, but you should bear in mind that it is ultimately your responsibility to decide which case is the most important for you to attend:

i) criminal cases take precedence over civil;

ii) a part-heard case takes precedence over a new matter;

iii) a case for which a fixed date has been obtained takes precedence over a “floater”

If none of the above apply, you should take into consideration the amount of work that you have done on the case, the length of time that you have been instructed on each case, each case’s complexity and difficulty and, perhaps most importantly, which lay client will be most prejudiced by someone else taking the case over at short notice. You should of course notify your instructing solicitors immediately it becomes apparent that you might not be able to conduct the case.

It is entirely up to the barrister to decide which case to do. The real issue is whether the solicitor is happy to release the barrister from the case. The buying power of the solicitor will define how hard a clerk can push and the limits he can go to. If a solicitor is unhappy with a change and the clerk insists the solicitor will probably take all of his work elsewhere and tell everyone he knows of how he has been treated.

This brings me back to the start. Why would a clerk look for ways to turn work away, that’s not what we do. When we do need to turn work away the exceptions to the Cab Rank Rule are used but often without thought as they have become common practice. They have become so because the Bar has evolved. There are good reasons why there should be exceptions, some practical and some economic. Some parts of the exceptions however have taken over its very noble purpose so that it no longer fulfils that purpose and most specifically when it is applied to legally aided clients. As an ethical value and as an aim it cannot be faulted but in reality it needs to be overhauled if it is to fulfil its purpose.

There is however one incredibly important reason to retain it. Barristers really, really believe in it. Not all barristers but the vast majority cling to its virtue and its values. They also cling to another section of the Code of Conduct, 303 (a).

A barrister must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person.

Couple this with the aim of the Cab Rank Rule and it is a heady mix of integrity and ethical behaviour that most of the Bar fervently believes in. To remove this from the Bar is to remove what it means to be a barrister and it cannot be taken lightly. To my mind the Cab Rank Rule should be overhauled and it should be applied to the entire legal profession.

All clients should be able to seek representation from lawyers, where the lawyer is suitably qualified and experienced and representation is appropriate.  Unless of course they can’t afford it. If they qualify for legal aid that will be OK. Unless there is a good commercial reason why it shouldn’t apply. Hang on I need to make a list of exceptions………oh.

¹Silks are a whole different ball game and have completely different practices to junior barristers. Some silks still offer their services as an expert advocate first and foremost, some however are very specialised.

²I know he is technically the Lord Chancellor but I cannot bring myself to refer to a non-lawyer in that way. He is the minister for legal aid and stuff like that as far as I am concerned.

³The vast majority of barristers who undertake legally aided criminal and family matters are committed to representing clients in such cases. They often do so for a fee which after travel costs, chambers expenses, tax and other outgoings is at a financial loss or for a tiny profit.

The Court of the Clerks’ Room

The Senior Clerk

The senior clerk is the king of all that he¹ surveys. He sits atop the clerking pile and teases and tweaks the slender threads of a myriad complex relationships with clerks, barristers, solicitors and courts. A deific puppeteer who manages, markets and moulds all around him to the greater good of the chambers cause. For anyone who reads Pratchett the senior clerk’s job is very much like that of Havelock Vetinari, the Patrician. It is to ensure that today happens much like yesterday. To gently oil the wheels and remove the burrs so as to keep things ticking along and where necessary to throw those who threaten the status quo into the scorpion pit. Senior clerks have an incredible mental Rolodex (dated I know) of contacts whose specialist skills can be called upon, as all will owe some favour or else can be owed a favour, to deal with some tricky problem. This is the source of all the senior clerk’s power, his own tangled network of contacts and specifically the manipulation of these contacts with his chameleonesque ability to interact with a whole range of people from different backgrounds. From the office junior to the Lord Chief Justice, from the receptionist to the senior partner; all know and like, trust, admire or fear (sometimes in equal measure) the senior clerk. What separates the modern senior clerk from those of yesteryear is the comprehension that this network on it’s own is no longer enough. The modern senior clerk must understand management and business skills which would be alien to those from my early years. My first senior clerk would have laughed raucously at the suggestion of a business plan or a budget. He would have scoffed at SWOT analysis and the pain/gain matrix. He would have been incredibly sarcastic at the suggestion of appraisals and targets and personal development. In contrast I have spent much time of late working on applying Lean principals to the processes that make chambers work. And what fun it has been. Today’s senior clerks often perform a very different role than those from my youth. Chambers are much larger than they were 20 years ago, such massive administrative machines cannot be managed using figures jotted down on the back of a fag packet. A blend of old school back scratching and modern techniques must be woven carefully together to produce the tapestry of skills required by the modern senior clerk.

Even in these modern times of enlightened business systems the senior clerk needs an old fashioned enforcer, someone to do the dirty work that he can’t be seen to do. Someone who can say the things that need to be said but that he can’t say himself. For all this he needs a first junior.

The First Junior

There is a bristling angry presence that lurks in the clerks’ room, bullying and cajoling all into toeing the party line. The first junior is an elemental force of nature that drives chambers along, carefully steered by the senior clerk. First juniors are generally angry; they are angry that they don’t get the recognition for all their hard work, they are angry that they have to deal with the constant inanity of barrister’s behaviour, they are angry about being angry and most of all they are angry that they aren’t the senior clerk. The first junior is both the heir to the throne and captain of the guards.

The first junior is often used by the senior clerk in the role of agent provocateur. When a barrister is making a nuisance of themselves and upsetting the delicate balance of chambers the situation needs careful handling. If the first maneuver was be dragged across the coals by the senior clerk the troublesome brief would have nowhere else to go. Who can you run to for sympathy and a “poor brave little soldier” if he that you would run to is the one that scolded you. If, however, the first junior has a sharp word or five with the barrister in need of correction then said  barrister can run to the safety of the senior clerk’s welcoming arms. The senior clerk will then soothe the worried brow and ask exactly what happened.

Ponsonby-Smythe: Seriously John she has gone too far this time, I will not be spoken to like that by Donna. It’s ridiculous who does she think she is.

John: You are absolutely right we can’t have clerks berating barristers, at least not without good justification. What did you say it was all about?

Ponsonby-Smythe: Well, errm, ah it was…(mutters under breath)

John: Sorry sir I didn’t catch that.

Ponsonby-Smythe: Well its quite silly really, probably not worth troubling you about. (edges to the door)

John: Oh no sir, now I know there is a problem we really need to investigate it fully.

Ponsonby-Smythe: Well if you insist. There was some mix-up over timings and it meant I was a little late for court.

John: Hmmm (long uncomfortable pause) That was that murder case for the new firm of solicitors with lots of high quality work who we have been pursuing for several years who could increase you income by a substantial amount?

Ponsonby-Smythe: (looking at the floor) Yes.

John: (narrows eyes) I see.

Ponsonby-Smythe: But the thing was….I erm…there was this…..(wilts under the laser like stare)

John: The issue of timekeeping at the bar is not a new one and not one I think we need spend any more time on (Ponsonby-Smythe looks up in hope and expectation) I am however concerned about this issue with Donna, we will need to raise this issue and all of the background in a full chambers meeting. (Ponsonby-Smythe wilts) Unless of course you think perhaps this is just a simple misunderstanding.

Ponsonby-Smythe: Oh yes, quite, exactly my thoughts. Passions run high, stress of the job and all that.

John: So we will say no more about it then.

(Ponsonby-Smythe exits to be replaced 5 minutes later by Donna)

Donna: The bloody Ponce was late again and it was for Dingley & Berkley, how long have we been after their work?

John: So what did you say to him.

Donna: I told him I was going to buy him a bloody big alarm clock and see if that could get him to court on time because if I didn’t he would end up losing himself work.

John: Sounds right to me, good job.

First juniors will eventually get to the point where they consider they are ready to move up into the big mans shoes. They are always wrong. To further a career a first junior will usually have to move to a vacant position in another chambers though there are occasional attempts at a coup. These never end well. I have made the transition from first junior to senior clerk and I have advice for all first juniors who are intending to make that leap. No matter what you do, no matter what you think, you aren’t ready and it will be much harder than you can possibly imagine. The buck will stop with you, whatever goes wrong it is down to you to fix, everyone looks to you and expects you to deal with whatever comes up. The pressure is intense. It took me 3 years to get to the point where I felt like I was doing a good job. Trust me it’s hard. One of my old senior clerks told me that in his first month in charge the first thing he did when he got through the door was vomit.

The Second (Third, Fourth etc) Junior

We have our king and our heir and now we need the rest of the court. The Dukes and Earls who are so far in line from the throne that their claim seems negligible. They scurry hither and thither doing some of the less glamorous tasks in the clerks’ room. Some rise and some fall and some stay the same for ever. There can be great harmony in the rank and file. There can also be some sharp cutthroat little sods who want to get on and will do anything to get there. You have to watch them. They are the senior clerks of tomorrow. They caper and clammer for attention from the senior clerk all the while under the watchful eye of the first junior.

The Office Junior²

No court is complete without the jester. A bumbling buffoon who spends his life being bellowed at and berated. A comic relief to the stress and strains of the clerks’ room. The office junior provides a vital role. Most of the tea consumed in chambers comes from the efforts of the office junior. The office junior also provides the senior clerk with a conduit to current trends in popular music, fashion and modern language. It is common practice to force office juniors to change their name if it conflicts with one of the other clerks. It is on the basis that it is difficult for barristers, solicitors and clerks to deal with two clerks with the same name.

John: Right then lad before you make me a brew and bring me the chocolate digestives, lets have a chat. What’s your name?

Office junior: It’s John.

John: No it can’t be. I’m John. Can’t have two Johns. What’s your Dad’s name?

Office Junior: Ian.

John: Good from now on you’re Ian. Now get me a brew and don’t even think about gobbing in it, I know all the tricks.

Ian: (somewhat bewildered) OK

John: Is your hair supposed to look like that or is it still raining?

The Fees Clerk

There is a very distinct sub-species of clerk which operates in quiet corners of chambers. They make numbers dance and twirl across columns of spreadsheets. They understand bookkeeping and accountancy. They are the stewards of the court. The fees clerk has one very specialised skill which sets them apart from the rest of the clerks. They know how to get barristers paid. It may surprise you to know this but there are some amongst the hallowed ranks of the noble profession of solicitors who have difficulty in settling bills promptly. Usually a quick reminder from the fees clerk will produce swift resolution of any late payments there are however some debts which are trickier. The fees clerk somehow gently twists the arm of the debtor in such a delicate and subtle way that the funds are extracted without any bad feeling. Fees clerks are generally quite solitary creatures preferring to perform their arts in privacy away from the throb and hum of the clerks’ room. Without them chambers would gradually grind to a halt and so whilst they closet themselves away they should never be forgotten.

¹ I have used the male pronoun throughout for ease, this is solely because it reads better and not through some deeply grained sexism. In my first clerking role I worked under a brilliant female first junior who taught me much of the dark arts of clerking. In all of my time clerking I have only worked in a completely male clerks’ room for a very short period of time.

² Apparently you aren’t supposed to use the term office junior anymore as it is ageist. To those that say this is the case I say sod off. It is a title not a description of the person.

What is a barristers’ clerk?

It occurred to me that whilst I have described all sorts of details about how barristers’ clerks interact with those around them and some of the trials and tribulations they go through in their working life, I have never actually explained what a clerk is. Contrary to popular belief we are not modern day madams or pimps, I prefer the description consigliere. There is very little written about what a clerk actually does. Google it and see what you get, not a lot is the answer. There have been various dramatic representations of the barrister’s clerk, most notably Henry who was Rumpole’s clerk, the frankly terrifying Peter from North Square and the Machiavellian shadowy figure of Billy from Silk. These are all however caricatures of the real clerk.

The seminal text on clerks was written by John Flood in 1983, Barristers’ Clerks the Law’s Middle Men is an encyclopedic exploration of the role of a clerk. It should, in my humble opinion, be compulsory reading for all clerks and barristers. Whilst much of the content of this fabulous book is now a little dated  it does provide a wealth of information of the history of the profession. Some may sneer at my indication that barristers’ clerks are professionals however in my view it goes beyond that, it is a calling. It is a way of life that permeates everything you do and alters your entire perception of life.

John Flood produced a lesser known paper in 2007 which updates his original book somewhat. This gives a far more up to date snapshot of the role of the clerk and is superbly titled “He’s Fucking Marvelous” – The Fall and Rise of the Barristers’ Clerk. This later piece hints at the potential changes in a post Clementi world and explains how some chambers tried to phase out clerks to be replaced by Chief Executives and Practice Managers who came from a non-clerking background. In general this didn’t work hence the fall and rise in the title.

There is also a little known publication about the magical world of barristers’ clerks which is taken from a speech given to the Barristers’ Clerks Association* in June 1971. According to the foreword the speech was given by Mr. S. G. Newland (the President) to students of the Association but was attended by many other members “anxious not to miss an opportunity of listening to him”. I can understand why. The speech is remarkable and truly describes what being a barristers’ clerk is all about. There is a quote within from a text dating back to 1775 which describes the role of John Lamb the clerk to Mr. Salt K.C.:

“He was at once his clerk, his good servant, dresser, his friend, flapper, his guide, stop watch, auditor, treasurer. He did nothing without consulting him, or failed in anything without expecting and fearing his admonishing. He resigned his title almost to respect as a master, if his clerk could have ever forgotten for a moment that he was his servant”.

That is it in a nutshell. It does however require further explanation and for this I am extremely grateful to Mr. S. G. Newland. I haven’t directly quoted all that he wrote for the sake of brevity but if you get the chance to read the full text it is wonderfully poetic. I have also only used the male pronoun for simplicity as I got bored of editing the original by typing he/she, his/her etc.

• He was at once his clerk – Everyone who wanted the services of a barrister would have to go through his clerk. He would agree the fee for the work, arrange for the work to be completed, collect payment and bank the fee.
• His good servant – Many barristers still regard their clerks as their servant and if called upon to do some menial task it should be done with good heart as it is part of the tradition.
• His dresser – Ensuring your barrister is properly robed and has a good supply of clean collars and bands.
• His friend – The relationship between a barrister and his clerk often is most remarkable. Thrown together so constantly as they are, a bond grows up between them is difficult to describe – it has to be experienced.
• His flapper – At the time wigs would have been powdered and would need flapping to remove excess powder.
• His guide – He told him where to go and how to get there.
• His stop watch – He told him when to go.
• His auditor – He supervised his finances.
• His treasurer – Always have £20 ready for when your principal suddenly says “good heavens, I’ve got no money”.
• He did nothing without consulting him – Whether the decision is trivial or momentous: “Should I give up this type of work? Am I getting fat? Should I apply for Silk?”.
• He resigned his title almost to respect as a master, if his clerk could ever have forgotten for a moment that he was his servant – Never forget your place. Nobody knows where the line is, but you will immediately know if either you or he steps over it.

What is amazing about this description and explanation is how relevant it still is today. I have never flapped a wig, I was also mightily relieved at this explanation as I thought a flapper was something else entirely (oh no wait that’s a fluffer). All of the other tasks I have done and still do and are still applicable to modern day clerks.

Expanding on some of these points I can perhaps provide a little more detail about how it works in practice. The point about performing menial tasks is perfect starting point. You may think this means just that; it can however mean something mind-wrenchingly bizarre. A fellow tweeting clerk recently recounted a story from his early days about having to stand in a toilet window and pretend he was indulging a spot of onanism. This was in response to a complaint from the chambers across the road whose members could apparently see the silhouette of a self indulgent person using the facilities for a purpose beyond their design. I once had to go lingerie shopping for a barrister’s anniversary present to his beloved wife, not fun when you are a shy inexperienced 18 year old. A world of lace, silk, bras, briefs, thongs and (deep breath) suspender belts was far too much for a delicate soul such as I.

Due to the reduction in the need to wear wigs and gowns the requirement to find collars and bands is less of an issue than it used to be. Those clerks who have barristers with criminal practices will doubtless disagree as will those who clerk in London rather than the provinces, the difference between the two is enormous and worthy of its own post. I do fondly recall the panic of rushing round chambers rooting through wig tins looking for a clean 17 & 1/2 inch collar for Mr Ponsonby-Smythe who was due on before the red judge in 10 minutes. Studs! You could never find any collar studs, they were like gold dust. I recall that at one chambers I worked we bought a cheap travel iron so that we could ensure bands were crisply pressed for court. There would always come a time when you had to send a barrister off to court in a nasty yellowed collar which you had pinched from the only wig tin you could find and you always felt like you had let them down.

I have always enjoyed telling a barrister where to go. It is one of those wonderful small victories a clerk has when explaining to Mr Ponsonby-Smythe, who two days earlier tore said clerks ear off for sending him to court in a yellow collar, that he has a case in Carlisle tomorrow and no there isn’t anyone else to go and yes it’s for one of his really good solicitors and yes I know exactly how far it is and what time he has to get up (because said clerk looked it up and had a really good laugh about it).

Unfortunately try as we might clerks back through time have been unable to properly explain to some barristers the unpredictable nature of travel and the need to allow enough time. It is therefore often difficult to perform the role of stopwatch especially when dealing with someone who thinks that a train that arrives at 10-29 is ideal for a hearing that starts at 10-30.

Barristers are like the Queen, they never carry money. A good clerk always has a wedge just in case Mr Ponsonby-Smythe needs to get a taxi to court (his train having arrived 20 minutes late thus making him 19 minutes late for court and therefore in a bit of a hurry). I have had to run to a restaurant, where a senior member of chambers was wining and dining a new prospect, to pay the bill as he had “left his wallet at home”. The same member of chambers often needed his telephone, gas and electric bill urgently paying at the post office as he had “sent a cheque in the post” which surprisingly never arrived.

There is a reference to the roles of master and servant and I have covered this oddity in a previous post. It can seem strange to an outsider but it works. I once had a stand up row with a junior member of chambers over a brief I took on late in the day. The barrister had arranged  some social event as at 4-00pm their diary was still empty. I had taken a case at 4-15pm and proudly dashed off to inform the lucky recipient. I was met with a very unhappy visage and an audience of 3 or 4 other barristers. As I presented the brief I was met with the phrase “how the bloody hell am I supposed to prepare that”. I shuffled out of the room reddened and angry, and I bided my time. When the barrister came into my realm I waited until the senior clerk was off the phone to be sure I had my audience and asked why the barrister wasn’t happy about doing the case. The cocksure barrister suddenly became somewhat meeker and mumbled something about a dinner reservation. I exploded in righteous indignation “you pay me to find you work and then complain when I do it”. I glanced at my senior clerk and watched the merest flicker of a smile flit across his lips, confirmation that I was in the right. Barristers pay clerks to tell them what to do, they may not always like it but that is what we do.

Having read the last few paragraphs you may have assumed that I dislike barristers; nothing could be further from the truth. Mr. S. G. Newland was entirely correct. It is a special bond that really has to have been experienced to be understood. Despite the seemingly odd hierarchy it all works in a wonderful symbiotic bubble of mutual understanding. I have nothing but respect for barristers. Their ability to work incredibly long hours, sacrificing precious time with friends and loved ones to read vast amounts of complex paperwork, retaining the salient points for only as long as is needed from one case to the next.  They are truly remarkable and bloody infuriating in equal measure.

What makes a good clerk? Clearly someone who can follow the guidance of Mr. S. G. Newland. A good clerk is subservient or strict to the point of draconian as and when the need arises. A friend in times of trouble, a valued adviser when direction is required, a money lender and an accountant. Someone who knows their place and knows exactly when to explain precisely what that means.

 

 

* The Institute of Barristers’ Clerks was formerly known as The Barristers’ Clerks Association. It was formed in 1922 and is the professional body for barristers’ clerks in England and Wales.

Lets play master and servant

You might have assumed that the title of this post is something to do with 50 Shades of Grey or one of the many lady porn copies which are advertised at train stations.  I think we have all had enough of nipple clamps and red rooms of pain and so thankfully this post is actually all about the curious relationship betwixt barrister and clerk. It is an extremely complex symbiotic partnership that transcends the normal employee and employer relationship. It is shrouded in mystery to all but the few who actually see it up close.

I have in the past tried to explain it to friends, family and to random blokes in the pub by referring to the class sketch from the Frost Report. It’s not a perfect analogy but there is a definite class and status theme which runs, like a floppy faithful hound, through the barrister/clerk double act. The clerk is traditionally a working class geezer with the gift of the gab, the phrase “barrow boy” is often, cruelly, used to describe clerks. The barrister in contrast is university educated, sometimes from a privileged family background and generally with the common sense of a goldfish. The barrister will look down on the clerk for his lack of education, refinement and his inability to pronounce aitches. The clerk in turn will look up to the barrister as both employer and in recognition of the higher social status as a professional. The barrister however looks up to the clerk because of his higher income* and the fact that his or her clerk owns a small place in the country called Casa Shirl† which sits in 200 acres and has a private lake and a folly which is modelled on a 12th century French monastery whilst he or she crams into two rooms near Euston station. The clerk looks down on the barrister for his lack of understanding of simple practicalities such as leaving your brief, containing extremely sensitive information relating to Dave “Psycho” Smith, on a train is not only a breach of data protection rules it is also likely to mean a lack of knee caps in the none too distant future.

One of the senior clerks I worked for early in my career summed up the relationship succinctly “they pay us to tell them what to do, they ignore what we tell them and then when it comes on top we sort out the mess”. This is perhaps a little harsh sometimes barristers do listen to the advice of their clerks but usually when they do, and it pays off, they tend to pass it off as their own genius. There is a well known clerking phrase “when a barrister is busy it’s because they are brilliant, when they are quiet it’s because their clerk isn’t doing enough”. These last few statements seem to point to a strained relationship almost like an old married couple whose sole reason to remain a couple appears to be their enjoyment of the high level of animosity which passes between them (I am thinking of Marie and Frank from Everybody Loves Raymond, if you haven’t seen it I strongly recommend watching it just for the fantastic banter between those two characters). The odd thing is that this animosity towards each other is hidden beneath a veneer of seemingly mutual respect.

I am a traditionalist and I like to refer to my barristers by their surnames, Mr this and Miss that. In turn I expect my barristers to refer to me by my first name. This may seem a little odd to the outsider however it provides a framework for both parties to take their place in the class sketch line up. I look up to him and so I refer to him formally, he looks down on me and so refers to me informally. It must look like the sort of arrangement that features in television costume dramas involving a rich family, their servants and the stately home they all live in. For clerks it does provide a wonderful outlet for the pent up frustration that clerks often feel.

Clerk: Well, Mr Ponsonby-Smythe, you may well be right, it probably would be a good idea to apologise to your instructing solicitor about the fact that you turned up late and with the wrong brief for the conference this afternoon.

If you substitute John for Mr Ponsonby-Smythe the sentence takes on a completely different feel and doesn’t quite convey the amount of sarcasm which is drizzled heavily on the original version.

This seemingly archaic use of title serves a more important purpose. The clerk acts as the gateway to the barrister and therefore needs to be accessible to clients. The barrister needs to retain a theatrical mystique to inspire respect from clients. The solicitor gets to speak to friendly cheeky chappy Bob or Trev or Dave rather than someone who finds jokes in Latin side splitting hilarious. The client gets the barrister he expects, Mr Ponsonby-Smythe complete with pocket watch, pinstripe trousers and masonic handshake rather than a Mike Reid sound-a-like. It is worth noting that some barristers jog in to conference and say “call me John” but it always reminds me of an over enthusiastic English supply teacher who was drafted in at short notice after Miss Jones was caught inebriated and in a compromising position with one of the sixth formers at the school disco. I have never required the services of a barrister but I would prefer a Ponsonby-Smythe to an overly chummy “call me John” type.

The clerk acts as the conduit for communication between barrister and solicitor. This often requires the clerk to translate what is being said and filter out such minor slights that could possibly cause offence.

Ponsonby-Smythe: When is Johnson going to send me the bloody brief on this fraud trial, doesn’t he realise how busy I am. I simply won’t be able to prepare it in time for the conference unless it is here tomorrow. He is always late with his briefs tell him to jolly well buck his ideas up or I may have to take my services elsewhere.

Clerk: Hello Bill, Mr. Ponsonby-Smythe is keen to get stuck in preparing for the conference next week. Is there any chance of getting the brief to me tomorrow, he knows how important the client is to you and really wants to dazzle him with his grasp of the case.

Bill Johnson: No problem Trev they will be with you tomorrow. Is he actually going to turn up on time then. That pilchard has been late for the last three cases I had him on. If he doesn’t pull his socks up I will find someone else to brief.

Clerk:  The brief will be here tomorrow Mr Ponsonby-Smythe. Mr Johnson asked if you could arrive a little early for the conference he is keen to go over a few things before you see the client.

Just where does the solicitor sit in the whole class sketch scenario? Both the clerk and barrister look down on the solicitor because well he or she isn’t a barrister. They both look up to the solicitor because without their work they would both be in trouble. I think that the barrister is Cleese, the solicitor Barker and the clerk Corbett but in this particular scene the clerk knows his place, it is somewhere above both of them.

It must appear oddly dysfunctional and swathed in bizarre Dickensian practices which have no place in the modern post-Clementi brave new world of legal services. But here is the funny thing, it works. Barristers and clerks complement each other perfectly, each brings something the other lacks. It’s not puppeteer and marionette, it’s not shark and remora fish, it’s certainly not master and servant. It’s more like a comedy double act.

I just haven’t worked out who the straight man is.

*The income reference is not as relevant now as there are very few (if any) 10% clerks# left.

†Named after Trev’s childhood sweetheart and wife of 30 years and Miss Essex runner up 1968, the divine Shirley.

# Clerks would originally receive 10% of their barristers earnings as their income, very successful clerks would often earn more than most of their barristers.