I read an article in Solicitors Journal titled – Do we need barrister’s chambers? The piece is by Adam Makepeace who is the practice manager of Tuckers one of the countries largest criminal firms of solicitors. I’m going to steer clear of the argument over the Criminal Bar’s “deal” with the MoJ, which forms the background for the piece, as frankly I don’t know enough about it. Instead I want to focus on what the article is really about and this is contained in the last few paragraphs and the title of the piece.
The title is a little misleading. I think it should really read – if barristers didn’t spend so much money on overheads they don’t need then they could share some of the fees they get paid for doing the advocacy that we work hard to get and then have to farm out to them as they have got the expertise that we need to use, well at least for now because soon we will just share work between ourselves and cut out the Bar altogether. That however isn’t nearly as snappy a title so I can understand why the writer went for something shorter.
Why do criminal solicitors brief barristers? There are three reasons.
The first is the expertise of the Criminal Bar. As Adam points out the increase in number and quality of Solicitor Higher Court Advocates (HCA) has taken some time and there are probably still not sufficient numbers of exceptional HCA to undertake the most challenging and complex of cases. Solicitors need to have a pool of experts to send these cases.
The second is client choice. Some clients will request a specific barrister. Repeat (alleged) offenders and those from unfortunate families who seem to find themselves the target of malicious prosecutions may have a chosen brief or briefs¹.
The third is as temporary staff or agents. If, on a particular day, a firm has 5 HCA who are all in court and the firm picks up another case they may need to return the brief to a barrister. The vagaries of court listing with warned cases, last minute additions and overrunning trials can cause havoc with a firms diary and there will always be a need to outsource work often at short notice.
In the first two scenarios a firm would almost certainly still require there to be criminal barrister available to take these cases. In the third scenario firms cross-referring clients to each other could well be a possibility. There would however always be that fear that the firm who stand in as agent may convince the client that a transfer of legal aid may be in order. Barristers can’t do that and that has always been a big selling point in briefing barristers as agents.
Let us assume that no solicitors firms will pinch each others clients and they all live happily together covering each others cases². That still leaves solicitors needing to brief barristers for some cases. Do those criminal barristers need a chambers?
The answer is – No, Yes, Maybe.
No – they don’t need a massive property to house all of the barristers. A clerks/admin room and a storage/coffee room could potentially suffice.
Yes – they do need an administrative staff. Part of the attraction of a barrister’s chambers for solicitors is the single access point for many barristers. One phone call to a clerk can give you access to anything from half a dozen all the way to a gross of skilled specialists. If a solicitor is desperately trying to find cover for a trial which has just been added to the list is it easier to make one phone call to potentially access 50 barristers or 50 phone call to access 50 HCA.
Maybe – some chambers are already moving away from the traditional setup and moving to a more virtual presence. Maybe the chambers of the future won’t have a physical office space. Maybe the admin will mostly be run by Max Headroom type virtual clerks. Maybe you won’t even have to call the chambers, maybe you just think it and a barrister is booked. Whatever happens there is always, even with the myriad of technological marvels available, a need to have a real person to talk to. Clerks or Practice Directors or Team Leaders or Cutting Edge Legal Facilitators³; it doesn’t matter what you call them but there will be a time when you need one.
One final thought on referral fees. There is reference in Adam’s piece to barrister’s paying 20% of their fees in expenses. That gives them a profit margin of 80%, not bad. However this also includes no sick pay, no holiday pay, no pension, no guaranteed income. The 20% quoted is probably a fair average in terms of chambers expenses but then barristers have other running costs; travel, accountants, legal reference materials (alright it’s probably just Archbold but it isn’t cheap), practising certificate, professional indemnity insurance etc. Solicitors criminal firms have average profit margins of 5-6%, at least according to the MoJ’s impact assessment on the legal aid cuts (which they then set at 17.5%). It is therefore easy to see that when solicitors need to outsource advocacy, from a simple financial perspective, it is far more attractive to brief HCA as they can share the fee. For barristers this is strictly verboten as this deemed to be a referral fee.
I don’t like referral fees. It’s paying for work. It means work doesn’t necessarily go to the best person for the job, it may well go to the one prepared to do it for the least amount of money. That to me just doesn’t seem right.
¹I could probably say something about client choice but that would be countered with the late returns argument which would be countered with warned lists/overrunning case. It’s all a bit boring so we will just leave it there.
²Probably whilst riding to court on unicorns across rainbow bridges whilst drinking ambrosia from Kelly Brook’s bra.