Current bar situation
Research led by LexisNexis UK brings to light the actual situation of the Bar. 40 % of the
barristers interrogated explained that the climbing of the costs such as the tuition fees, the live
costs, lease charge and house expenses opposed to the rentability of the businesses was one of
the main reasons. 30 % spoke about changes to Legal Aid and fixed costs, and revenue
issues: numerous barristers wait months, sometimes many years, to be paid, whether in public
or private cases. 28% spoke about the expansion of regulations: new rules on Data Protection
(GDPR), Money Laundering, HMRC’s ‘Making Tax Digital’ the regime for VAT. It is a real
problem for the profession because barristers lose time to stay updated with the latest change,
with additional red tape, and it leaves them less time to concentrate on clients; or commercial
growth for example, barristers said that promulgation of law should cease so that they can
devote themselves to their clients. Especially since these legislations augment the budget for
the small chambers, as they do not have the same resources that the bigger ones. At least
long working hours has put wellbeing as a major challenge for barristers.
Past events
Already since 1995, it was remarked that there is far more graduate of the Bar Professional
Training Course (BPTC) than there had pupillages put on the market. Students were left
disappointed and in debt, especially in criminal. The difficulties associated with the
introduction of legal aid had been predicted, but the future of the independent Bar was less
clear. In fact, barristers experienced in criminal affairs were approaching retirement, so the
main concerns were about the succession and the search for talents for criminal Queen's
counsels and judges. These problems were important on one hand, because of the uniqueness
of the English and Welsh criminal Bar, seen as a national asset, and on the other hand, the
need for the country to have high-level lawyers to undertake the most intricate and grave
trials, and elder judges with deep criminal experience.
The situation of the Bar since Covid-19
The Covid 19 has worsened the situation and the survival of the criminal bar is now at stake.
The publicly funded Bar, particularly the criminal Bar, has been the most affected. Trials are
the only way of earning money at the criminal Bar. The publicly criminal Bar depended on
fees from the Crown Prosecution Service (CPS) or the Legal Aid Agency (LAA). The
barristers are paid at a minimal level for preparatory work, for example, junior barristers will
earn £100 for a hearing, but it is a trial that is the base of any bills finally paid. The courts
have closed because of the pandemic, the hearings suspended, adjourned, or refused to hear
virtually, 99 % of sets experienced a fall off their activities. 75% of chambers saw their jobs
cut by more than 50%. A myriad of deferrals was in addition futile, intensifying the
undesirable huge backlog of court cases.
The chambers outside London was the most touched (31%), compared to (16%) within. 81 %
of chambers said not subsist for more than a year, without financial aid and if the current
circumstances were persisting. 67% of criminal sets outside and 90% within London said that
the current measures from Government would not help them either: 29% of chambers did not
think to continue to live more than 3-6 months and 58% not beyond than 6-12 months. 86%
of chambers earning their living over half their wage from publicly funded criminal work said
they will grow to faint in a period of a year. 60% of criminal sets furloughed clerks and/or
other staff, while 51% took other urgent measures, as negotiating or giving notice on leases,
and 30% of sets had to change their plans for 2020-2021 pupillages, 24% were unsure about.
Government support
The position of Chambers can be examined in contrast to other industries which have
received sector wide financial bailouts, grants and assistance like hospitality, pubs, or the
fishing industry. The financial help eliminated pupils and junior tenants -who were going to
start their tenancy in 2019-; and barristers on or returning from parental or adoption leave
who cannot have an income tax return for the 2018/2019 tax year or sufficient incomes for
the given period; those with salaries exceeding £50,000 and having significant childcare costs
– not deductible from gains – were not qualified for maintenance. Similarly, to numerous
self-employed, a lot of barristers did not qualify for Government support. Yet, the
preservation of chambers was vital to ensuring access to justice. Financial support was
mandatory to avoid the chambers' disintegration!
When the chambers -25% of all chambers and 27% of criminal chambers- wanted to
subscribe to the government program of loans for business interruption caused by the
coronavirus; the Bar Council was doubtful whether chambers would be included in the
scheme and under what conditions. It observed that the government should have extended
self-employed assistance to barristers not having the 12 months of receipts required and
allows other methods to prove their status and revenues, such as 2019/2020 tax returns, letters
from chambers, fewer months of receipts or their practice certificates for example. They
should also have favoured a deduction of childcare expenses to calculate a possible helping
hand.
The chair of the Bar Council, Amanda Pinto QC, blamed the absence of support from the
Treasury. 16% of self-employed barristers wanted to left the Bar, while 38% of criminal
barristers were uncertain, they will be going exercising law in 2021. The message from the
government to the Bar has been that the self-employed should go their own way out of this so
that they can continue to support and maintain the justice system. She said, all chambers have
significant ongoing monthly costs for non-furloughed staff, premises, business rates and other
ongoing liabilities to suppliers, utilities, and other service providers. Where is the money to
meet these costs going to come from? There is no real drive to rescue people at this point."…
Closing chambers
Charter Chambers had to officially close on 30 October 2020. Charter Chambers was a set
with 50 barristers, including 6 Queen Counsels (QCs). It was a leading set of criminal and
regulatory practitioners for many years. Its barristers were recognized as leaders in their
fields. Many of their clients were ordinary people, who mostly depended on Legal aid.
Charter Chambers announced its closure early in August, stating that this decision was
'inevitable', because the courts were unlikely to return to their normal functioning until
government medical advice changed, that a vaccine is found or that additional courtroom is
provided. Neil Hawes QC, head of Charter Chambers, said: “It was this assessment –
alongside a review of chambers’ own needs for its future – that led Charter to the unanimous
conclusion that to continue as we were doing would inevitably lead us to deplete our financial
reserves and result in the set entering into significant borrowing.’ Members were ‘not
prepared to engage in such a business risk.”
The barristers complained about courts not being used to capacity, like the Blackstone
or Nightingale courts. Amanda Pinto, Queen's Counsel (QC), the Chair of the Bar Council
said: "It’s just not being used efficiently or sufficiently."
" The private investment of barristers via their chambers for the training of students is how
the country train future civil servants of the judiciary. Chambers ensure every court hearing is
covered, making the necessary adjustments even up to 5 or 6 p.m. and later the night before
the next day’s list. This ensures economic efficiency as to the running of the courts. The
Criminal Justice system would disintegrate without the partnership of the significant criminal
chambers. The defeat of the Government to protect them to remain is sabotaging the country's
aim to encourage the wide social background to become the justice system of tomorrow.
Holding on life the criminal chambers will enable them to carry instructing, at their own
expense, the young lawyers of tomorrow, and so that some can become magistrates
eventually."
The most affected were people from well-off backgrounds but mostly those from BAMEs.
Some students and tenants had to abandon the Bar because they could not afford to pay their
rent and lifestyle. Juniors barristers with less than three years of practice were also the most
vulnerable if the chambers failed to recover as the law prohibited them from practicing
independently. The same for the state-funded Bar, and is more diverse than other areas, here
again, BAME and even women were the most, threatening the diversity of the criminal Bar.
The Bar council asked the legal aid agency to allow advanced payments (before the end of
cases). The Advocates Graduated Fee Scheme (AGFS) model normally wants that payments
to be made after the trials. But it would be a temporary solution as anyway, without trials, the
lawyers will struggle. It continues to urge the justice ministry and the government to provide
immediate support to the Bar.
The Lord Chancellor and the Treasury must let more self-employed workers access
government fund or there may be no one left to represent the victims and defendants of
backlogged cases before Covid-19. The government can no longer scorn! It has to review the
deliberate neglect the justice system has suffered under all governments since many times.
Bar Council chief executive Malcolm Cree said the representative body is to take out £5m
loan as part of the government’s Coronavirus Business Interruption Loan Scheme (CBILS)
5million is the maximum that can be borrowed to combat cash flow issues.
How barristers could redraw their practice?
67 % of barristers said their practices had grown or remained steady in the last three years
and expected their practice to grow or remain stable for the next 3-5 years. The surveyed
were at least 41 years old, that is perhaps why they are so confident, as they managed to build
up their practice over years, but they said to fear for their young colleagues.
Despite a big push from the Bar Council to encourage Direct Access, barristers surveyed said
that 91% of their work was instructed by a solicitor, 11% doing Direct Access work (by
members of the public), 3% cases' were Pro Bono, and 8% were Licensed Access (by
entities). Some said they are reluctant to switch to direct access because they do not want to
destroy their long-standing relationships with lawyers. The advantages of working in direct
access are that it can be a great development opportunity, lawyers also have more control
over fees as they deal straight with clients, disadvantages are the absence of infrastructure to
manage clients (processes, paperwork, etc.), a client service when handling client cases
directly, and risk of jeopardizing solicitors' regular work.
The inherent wisdom is to specialize, 62% of barristers work in only one practice area,
chiefly in Criminal and Family Bar: 76% of those in Crime only do Crime and 80% of those
in Family only do Family. Among those covering more than one practice area, the most
common composite is Commercial and Chancery: 56% of those in Commercial also do the
Chancery. The second most common medley is Commercial/Professional Negligence and
Civil/Personal Injury. 26% of barristers said that a mixed practice was a better way to grow,
44% of barristers still believe that specialism is better, nevertheless, they think that to survive
they will need to diversify. The barristers say one of the main obstacles preventing them from
branching out into new areas of practice are the lack of cooperation with other lawyers in the
same group, that is to say, they think they need someone – or somewhere – to get advice and
learn.
When asked what the support they need to help them to grow their practice: 57% said
develop/improve marketing strategy, 44% collaborate with other lawyers in their group, 36%
take training courses, 30% invest in technology – improve/build a website, 29% more
business development focused resources/staff , 25% invest in new business development
channels, 21% invest in practical advice and/or research tools, 15% offer mixed pricing
models, 13% Other, 12% Invest in technology – acquire/use a client data system, 11% Join a
different set. ‘Building/improving marketing’ comes on the top. This is an area where
technology can help. There are specific tools which could help barristers in these areas, as
generally, they do not have the training, experience, or interest in.
Today, one must be able to use technology to survive in any profession, even the Bar! The
way how barristers currently use technologies is as follows: 57% Paid for online legal
research and guidance 52% document management systems 50% tracking (changes to
legislation/ regulation) 48% document review (advanced proofing, clause checker). 84% of
barristers said to prefer to conduct their legal research online, while 16% preferred the print
format. 97% recognized that technology will be increasingly important in their work.
Growing regulation, rising costs and falling fees mean that lawyers spend less time on their
advocacy. Investing in technological tools will not only help them with simple tasks, saving
time and money but will also help them with the most critical challenges for a lawyer: stress,
resilience and work-life balance, exclusively due to lack of time. As a result, barristers will be
able to spend time in the parts of their work that they prefer and be satisfied at work.
Technology can also help barristers who would like to branch out into new areas of practice,
and now there are tools that make it easy to get a quick overview of a particular area of
practice and locate the most relevant legislation and cases in a few seconds, and the most up
to date daily. And for those who would like to take on more direct access work, tools like
smart forms and templates can help with tasks that would normally be incumbent on a
lawyer.
Barristers also said that to diversify, self-employed need to turn more to international work.
For commercial barristers, international work overseas is increasingly important.
The future of the Bar is at stake! Rising costs change to legal aid, regulations…are already the
challenges barristers were facing. Covid 19 has worsened this situation! The courts closed
and the impossibility to travel, and trials being the only way to make money, the barristers
found themselves out of work. Several chambers were forced to close, others said they could
not last long without financial support. The government has not supported the chambers and
stated that the barristers had to find a way out on their own. The Bar Council call for action,
and that at least the courts to be used to their full capacity. If it is clear that the situation of the
Bar is critical, Christopher O’Connor, Head of Segment Marketing at LexisNexis, has hope
for the future of the Bar. According to him, barristers must change the way they approach the
profession to perpetuate their sector within the legal profession. There are also real
opportunities for those ready to rethink their practice: diversification into new practice areas,
overseas work, taking on more Direct Access work or involvement in marketing and business
development. Chambers need to consider new tools and legal technology to help them and
can free their barristers and staff from time-consuming manual tasks to reduce long working
hours. Technology will also help and in new business development.
Barristers can no longer afford to rest on their laurels, nonetheless, they will need support:
training and advice to diversify, tools that will help with administration if they want to
attempt to take Direct Access work, help to develop strategies to develop commercially.