THE BAR - TIME TO MOVE ON

Says Bill Braithwaite QC

Barristers are under pressure at the moment, for a wide variety of reasons. We complain vigorously about government interference in the funding of litigation, and significant changes in the rules governing our profession, but one of the major reasons for the pressure might be just plain bad management.

Take a look at some of the headlines from the legal press over the last 12 months - "Maitland barrister defects to XXIV Old Buildings", "Number of pupillages hits an all time low", "Chambers set to split in two" "1KBW snares St Philips childcare barrister", "Matrix spreads its web over Hailsham barristers", "3/4 South Square barrister joins St Philips", "No 5 Boosts PI With St Philips Barrister", "McDonnell leaves 9 Stone Buildings for own chambers". The list of sensationalist headlines goes on and on.

The Bar is a notoriously conservative profession, and for years any chambers which have taken a progressive approach to the management of their business have run the risk that those in authority would disapprove.

In a small profession, even unspoken criticism can have a real effect. Now that the pressures are affecting so many barristers' chambers, the Bar as a profession is starting to notice that we are all running businesses (or should be), and that therefore we may have to take heed of some normal business principles. Of course, for many it is too late; chambers have been collapsing over the last few years, or merging in an attempt to avoid dissolution.

One of the fundamental aspects of ordinary business management is recruitment. It is frequently, if not universally, considered to be inappropriate to "poach"barristers from other chambers, although most businesses would consider head-hunting to be a normal part of their lives.

Recruitment and selection of personnel is a specialised business, and chambers may find that they either have to take advice from recruitment professionals, or employ recruitment consultants. That would necessarily involve individual barristers being identified as suitable, approached with a view to moving to join an alternative set, and possibly even being offered incentives to make an attractive package. Some chambers have detailed remuneration packages for pupils, and that might have to extend to qualified barristers at all levels of experience.

Interestingly, we have started to see barristers moving chambers on a more regular basis. It has been, and probably still is, our tradition that you join a set of chambers with a view to staying there for life, but that may change. It is becoming a matter of survival to find a chambers which gives the individual the best chance of building a career. Therefore, those barristers who have an understanding of the importance of running a good business will start to assess their opportunities. For example, it may become relevant to examine all aspects of one's own chambers, and various others, in order to assess career opportunities. That will involve a consideration of management and administration, including the quality of the systems of public relations, marketing, fee collection, staffing, recruitment and selection.

Of course, many traditional barristers would take issue with the notion that chambers operate a business; we are a profession, and must not lose sight of that fact. I agree with that view, but see a very obvious compromise, which is that we are running businesses providing professional services. Provided we all remember that commercial pressures must not intrude inappropriately, we should be able to combine good business practices with high professional standards.

Of course, a weakness of the profession in this area has always been that all barristers in chambers are self-employed, and the conservative view is that therefore each individual has an absolute right to manage his or her own affairs with minimum regard to the overall interests of chambers. More progressive chambers may now take a more corporate view, and ask members to put the interests of the corporation on a par with their own. Another traditional perception is that a tenancy in chambers is a job for life. Part of the reason for this is the notion that, because barristers are not partners, there is no mechanism to ask a member to leave. An alternative explanation may be that, in the past, the pressures have never been so severe that chambers require to operate at maximum efficiency in order to survive; in toady's climate, that attitude may have to change.

Good recruitment may be one of the essential changes which the Bar must make in order to continue to provide a service of real importance. That may mean that "poaching"becomes an out-dated word, and that head-hunting develops into a respectable part of our business/professional world. If it did, we would gradually create high quality organisations, offering first rate services.

BILL BRAITHWAITE QC

This article appeared in The Times, 11 January 2005