Conduct and ethics in the legal profession – could we do better?

Thanks to Neil Rose of Legal Futures for convening a day long conference on Regulation and Compliance in the legal services sector on 6 June 2019 – this is just the sort of gathering that gets an unabashed regulatory anorak like me up and out the door with a spring in my step of a morning!

To hear a short clip of my opening contribution to the panel debate on the above topic between Iain Miller (Kingsley Napley), Richard Moorhead (UCL), Simon Davis (Vice-President of the Law Society, Clifford Chance), Ed Nally (President of Solicitor’s Disciplinary Tribunal) and myself, click on link below.

Audio clip

Legal Futures Regulation and Compliance Conference, 2019

Photo by Jonathan Goldberg.


“Lifting the veil” debate, Grocer’s Hall, London, 22 February 2018

The prompt for this event, chaired by Michael Brindle QC, was Constantine Partasides QC’s proposal for amending the Arbitration Act 1996 to make the default position in arbitrations under that Act non-confidentiality, reversing the present common law approach.

Constantine kicked off by outlining the case for his amendment (as outlined in “Raising the Curtain on English Arbitration” Constantine Partasides, QC  and Simon Maynard, Arbitration International, Volume 33, Issue 2, 1 June 2017, Pages 197–202).  Anneliese Day QC made the case against the amendment and my role as the third speaker was to find something to say that they had not already said.

I thought perhaps if I put my text out there, by way of one response to the debate Constantine has got started as to ways the 1996 Act might now be improved, it might prompt some other contributions.  What particularly strikes me is the need for comparative evidence from other jurisdictions against which to test any proposals for change.  I would welcome comments from those whose experience enables them to answer some of the questions I threw out to our audience in that respect!


Since I’m the third wheel here, my role is to react to what we’ve just heard on both sides of the debate, be contrarian and stir up debate.

I have to say I think my own views have evolved whilst I’ve been thinking about this talk.  I started out inclined in favour of the proposal:

My first degree was in history and I have a historian’s instinctive sympathy for Lord Justice Thomas’s point of view.[1]  There are many frequently recurring issues plaguing modern businesses that are yet to receive an authoritative ruling from the courts. One compares that with the rapid emergence of a substantial body of business case law in the 19th century courts.  Basically, is arbitration freeloading on the efforts of the Courts and those parties who are prepared to resolve their disputes publicly, and is that unsustainable.

I also agree with Sir Bernard Rix[2] that it is rather extraordinary that we expect clients to buy a pig in a poke, selecting arbitrators with no direct means of insight into how they actually do the job, as opposed to being able to browse anonymised awards and assess the quality of their reasoning.

[1] Lord Justice Thomas described the prevalence of arbitration as creating a “serious impediment to the development of the common law” in his 2016 Bailii lecture: (accessed 22/2/18).

[2] “The absence of transparency means that we simply do not know how arbitrators perform the role of factfinders, or the role of contract interpreters. One might think that those who have to select arbitrators are entitled to know how they perform in these basic tasks.” Rt Hon Sir Bernard Rix, “Confidentiality in International Arbitration: Virtue or Vice?” Jones Day Professorship in Commercial Law Lecture, Singapore Management University, Singapore, 12 March 2015, p. 18: (accessed 22/2/18).

I’m also troubled by the fact that, even now, the list of exceptions to the implied duty of confidentiality is not settled and the courts have never considered many common situations.  It seems to me that treating the duty as implied is contributing to a lack of clear boundaries, whereas the proposed shift would force parties to think harder about what they want to protect and why, expressly defining the scope of that protection, or indeed concluding that they don’t need any.

Relying on an implied duty increases the risk that the parties get caught out by unanticipated problems – by way of example, if a party needs to take steps to enforce the implied duty of confidentiality in another jurisdiction which does not treat confidentiality as the default position, they may end up in a tangle if they can’t point to an express contractual term imposing confidentiality.  If our own courts can’t agree on whether the implied duty is an implied term of the arbitration agreement (and, in fact, now tend to the view that it is not) one can hardly expect overseas courts to give it that status, and if it isn’t an implied term but operates as part of the law of the seat of arbitration then will that be enforced in a jurisdiction that does not itself recognise an implied duty?

The most important thing for business, surely, is certainty and not having reasonable expectations disrupted because of a plethora of differing approaches across different institutions and different jurisdictions.  At first blush, forcing parties to create their own express terms should promote certainty, provided that all those differing regimes at least have in common a principle of respect for party autonomy.

However, the deeper I got into it the less clear-cut it seemed:

Making the default position non-confidentiality instead of confidentiality may not get to the nub of the problems identified by Lord Justice Thomas and Sir Bernard Rix; it may create other problems of its own; and there may be other issues which users of arbitration would see as a higher priority.

No one is suggesting taking away party autonomy and therefore, if confidentiality is really a business priority, parties can be expected to shift to addressing it expressly. The difficulty of crafting tailor-made exceptions at the time of the arbitration agreement may well lead them to include widely drafted blanket confidentiality clauses, so as to give themselves a platform from which to negotiate any later exceptions. If that happens there will be no improvement in the dearth of caselaw or the ability of the market to assess the quality of arbitrators, sight unseen.

I know that there is a theory that making the default position non-confidentiality will act as a “nudge” which will result in more parties accepting that nonconfidential default position – a bit like making organ donation the default position, rather than something you have to opt in to. But, if the parties are relaxed about confidentiality, they can perfectly well agree that, in their arbitration agreement or at the time of the arbitration, and, if they aren’t relaxed about it, this shift just becomes a way of catching out any parties who are snoozing at the wheel.

A more effective means of addressing the issues that Lord Justice Thomas and Sir Bernard Rix highlighted, would be publication of sanitised and anonymised arbitration awards.  I suspect there would be an outcry if I suggested that our Arbitration Act should be amended to give arbitrators a discretion to do this even where the parties did not consent.  However, if an arbitral institution makes anonymised publication part of their rules, then parties who choose to operate under those rules will have consented to publication in that bowdlerised form.  Will institutions who adopt that course for commercial arbitration lose business or might they actually benefit from being seen to be providing valuable guidance and show-casing the quality of their arbitral process?

Whilst the parties are free to reach express agreement about the existence and scope of any confidentiality obligations, that doesn’t deal with the position of third parties involved in the arbitration such as factual witnesses and expert witnesses.  The proposed shift away from treating the arbitration as generating its own implied confidentiality obligation as a matter of law would leave them free of any obligation, unless one was imposed on them by express agreement, which may not be practical in the case of factual witnesses.

So, where parties have expressly bargained for confidentiality, they may find that bargain undermined by others in a way they can no longer control, once the backdrop to their bargain is no longer an implied duty of confidentiality.  At the moment the implied duty operates within a wider common law concept of a duty of confidentiality which arises in situations where there is a reasonable expectation of privacy.  The confidentiality obligations of those who are not party to the arbitration agreement are best seen as deriving from that expectation.  If the default position ceased to be confidentiality that basis would be undermined.

A change effected by way of amendment to our Arbitration Act only assists where this jurisdiction is the seat of the arbitration and, by itself, will not solve the difficulties and uncertainty that arise from conflicting approaches in different jurisdictions.  Some have suggested a model law to address this difficulty but given that jurisdictions and arbitral institutions are likely to be pretty entrenched in their conflicting solutions, achieving this seems a long shot.

And there may be other issues that would come higher up the wish list of parties using arbitration.  Debating whether the default position should be confidentiality or non-confidentiality may seem a bit “angels on pinheads”, if we can’t guarantee effective enforcement in those cases where parties do agree on confidentiality but then someone blabs.  Human beings are not naturally discreet.  As Nietzsche put it: There will be but few people who, when at a loss for topics of conversation, will not reveal the more secret affairs of their friends.  Effective enforcement of any express confidentiality obligations may remain a challenge unless backed up by liquidated damages clauses – and of course getting those recognised as valid and effective can be riddled with difficulty if the problem is playing out across an international stage.

If we want empirical evidence for how this proposed change might play out on the ground we should pay close attention to those jurisdictions that already have a default position of non-confidentiality.

If there are any of Anneliese’s “liberal Swedes” in the audience please don’t feel shy – we would be very interested to hear from you!  Likewise, US lawyers.  Has the stance your Courts have taken on implied duties of confidentiality just led parties to resort to express terms, or has it actually led to greater transparency.

And is there any one here with experience of regimes that don’t even uphold express confidentiality agreements?  Constantine lists a number of them in his article[3] – I understand they include for example, Brazil, Japan, and Russia.  How has that impacted on the willingness of parties to choose those jurisdictions as places to arbitrate?

[3] Constantine Partasides QC and Simon Maynard, Raising the curtain on English Arbitration, Arbitration International, Volume 33, Issue 2, 1 June 2017, Pages 197–202: (accessed 22/2/18).

Australia provides an interesting case study. As we all know the ESSO case put the cat amongst the arbitration pigeons and fuelled academic commentators for many years. In 2010 Australia introduced in its Arbitration Act an opt in regime for international arbitration under which the default position was non-confidentiality. Now, that was at odds with the regime that was introduced at the same time for domestic arbitration under which the default position was confidentiality. Then, in 2015, the Arbitration Act was amended to an opt out regime for both international and domestic arbitrations, so the default position in Australia is now confidentiality for international arbitrations. Australia has therefore very deliberately completely reversed the effect of the Esso decision.

Now why have they done that? I don’t know enough about the background to the legislation. It may be that there had been specific problems under the default non-confidentiality regime, that were coming up before the Australian Courts, or it may be that Australia feared that it was losing arbitration business to other jurisdictions that provided the protection of default confidentiality. If there’s anyone here who can throw some light on the thinking behind that change, again, we would be very interested to hear from you.

Frankly, unless we do have some hard evidence to support making the change perhaps we should hold our hand. Sir Patrick Neill QC ended his seminal 1996 article on the topic of confidentiality in arbitration by saying that “on the whole, inaction seems good action”.[4] I realise this is a lot less attractive than taking a campaigning stance for change but maybe perhaps there’s still wisdom in those words?

[4] Sir Patrick Neill QC, Confidentiality in Arbitration (Arbitration International Vol 12 1996 287).

Alternatively, because let’s face it that’s not controversial enough, let me end by offering a third way:

Back in 1996 the decision was taken not to include confidentiality in the Act.  In 2018, perhaps it is indeed time for us to stop relying on an implied duty whose precise juridical basis and scope remains a matter of debate.  But instead of shifting to an implication the other way, against the grain of our caselaw, perhaps we should, instead, seek to crystallise in statutory form the position the common law has reached and address any gaps.

If we are to introduce an amendment should it instead be an amendment along the lines of the New Zealand and Scottish regimes,[5] to name but two of the available examples, laying down a statutory regime of default confidentiality, with defined exceptions and, perhaps, as the New Zealand scheme does, laying down a defined procedure, forum and set of principles for resolving whether or not to permit disclosures outside those exceptions (because no list will ever capture all possible scenarios).

[5] New Zealand deems there to be a confidentiality clause in every arbitration agreement that’s subject to their 1996 Arbitration Act, subject to defined exceptions which are broadly similar to our common law exceptions.  Their act also lays down a procedure for ruling on any other disclosure applications outside the defined categories, which can be invoked before the Tribunal or, after the arbitration is ended, before the High Court.  The prescribed test is whether the interest in preserving confidentiality is outweighed by other considerations that make disclosure desirable in the public interest.  That gateway raises the interesting possibility that it could, perhaps, be used to introduce greater transparency in respect of arbitrations involving public bodies (which is the area where there may be greatest pressure to lift confidentiality).  The Act also provides that applications to Court arising out of Arbitrations will be heard in public and judgments published, other than exceptionally.

Scotland’s Arbitration Rules 2010 likewise make the default position confidentiality, with specified exceptions, subject to the parties being free to opt for a more liberal approach.  Scotland doesn’t seem to provide for disclosure outside the defined categories, which makes the regime less flexible but also more predictable. Under their regime, the presumption on arbitration related court proceedings is that they’ll be private and the Court record sealed.

Again, if anyone here has direct experience of the pros and cons of either of those regimes, it would be interesting to hear from you. In some other jurisdictions similar results are achieved through the rules of the dominant arbitral institution favouring confidentiality. (In this jurisdiction, the LCIA rules do expressly provide for confidentiality but that’s not, for example, the case if the parties choose the ICC.)

An amendment to the Act along those lines at least would mean that a party who is considering choosing this jurisdiction as a forum for arbitration would not need to puzzle over a succession of cases in order to understand what approach English law currently takes. That would make our regime more readily comprehensible to an international audience – and you are more likely to be attracted to a regime you can readily understand!

The statutory default regime would be subject to any more liberal approach the parties may agree upon, whether in their arbitration agreement, at the outset of the arbitration, or by way of the rules of the arbitration institution they have selected.  It’s the fall back and if the parties do not want confidentiality they’d be free to agree to dispense with it.

However, the statute would also define the area the parties are not free to alter by their agreement, for example the fact that disclosure will be ordered where it is in the interests of justice, even if the parties have purported to agree on blanket confidentiality.

It would be up to arbitral institutions whether they see a market for a more transparent approach and, if so, they can seek to encourage that through their rules, for example on anonymised publication of awards.

We should ask ourselves whether the reasons that persuaded the DAC against a statutory approach back in 1996 remain valid.[6] Back in 1996 it was thought that the existence of the duty was uncontroversial, the difficulty was thought to lie in formulating exceptions satisfactorily – but are we being wimps where others have managed to crack this?

[6] Departmental Advisory Committee on Arbitration Law, Report on the Arbitration Bill in February 1996 (the “DAC Report”) at paragraphs 10-17.

I anticipate Constantine’s riposte to my suggestion that a statutory default should point towards confidentiality, rather than away, will be that it’s even less appropriate for Parliament to legislate in favour of confidentiality now than it was in 1996, because there’s no longer a consensus that the duty should continue to exist and doing so might hold back the tide of change he wants to see in favour of transparency!

I have a sneaking sympathy with that – but as I said my role was to be contrarian – I hope I have succeeded! I’ll hand back to Michael to launch the debate.

Future Proofing the Bar: what is the role of the regulator? (Lincoln’s Inn, 9 July 2015)

I think it’s time the Bar Standards Board had a theme tune.  Something catchy and upbeat.

I’m going to show my age here.  Fleetwood Mac, anyone?

I’m not going to risk breaking into song – I’ve not had enough to drink yet.  But when I sat down to write this speech I found these lyrics running round my head:

Don’t stop thinking about tomorrow

Don’t stop, it’ll soon be here

It’ll be even better than before,

Yesterday’s gone, yesterday’s gone

Over the past six years on the Bar Standards Board I’ve spent a lot of time thinking about the future of the Bar, what’s changing and why, and what challenges that creates for the profession and for its regulator.

It’s been very clear to me that a lot of practitioners are very worried about what the future holds.  But are they right to be?  Are we all doomed?  Yesterday’s gone, but does it follow that tomorrow is a relentless slide downhill, or do we have it in our power to make it better than before?  What does the future hold for the Bar and its regulator?  Utopian optimism or dystopian despair?

Predicting the future is nowadays a specialism in its own right.  Futurologists, they call them.

There are probably more famous examples of futurologists getting it wrong than in any other field of human endeavour.

A few years ago, a book originally published in 1972 gained something of a cult status and was republished.  The title was, “2010: living in the future” and its author, Geoffrey Hoyle, envisaged that we’d all by now be working a three day week and wearing jumpsuits.

When the book was rediscovered and became a viral phenomenon online, the burning question everyone had for the author was, why jumpsuits?

Well, it turns out that was a kind of fashion shorthand for the author’s expectation that the future would involve restriction of individual liberties.  His imagined future was a collectivist vision of a planned society, which was more than a little influenced by the political climate of the cold war when it was written.  The idea that the Berlin wall might come down and the tectonic plates of geo-politics rearrange themselves, in the way they did 17 years later, was just beyond his imagining.

There’s a lesson to be drawn from that.  Futurology is often not radical enough, patterning the future on the present, because really radical change is inherently unpredictable – it breaks the mould of the past.

Geoff Hoyle thought we’d be liberated by technology – that’s also a common theme – the idea that technology might mean we have to work harder doesn’t seem to have occurred to many futurologists.  But think photocopier, or email.

I’ve certainly seen some predictions about the future of the Bar that proved just as ill-founded as any of these examples.  I was called to the Bar in 1988.  The Green Paper on rights of audience for solicitor advocates came the following year, in 1989.  There was, I clearly remember, a mood of doom and gloom and indeed a sense of betrayal.  Some chambers even reacted by telling their pupils not to turn up for their pupillages, as they would not be taking anyone on.  My then pupil-master predicted the Bar would only last another 10 years but told me I could risk it if I liked.

Clearly, those predictions were too extreme.  The Bar is still here.  Yet much has already changed.

Regulation of the Bar has changed since 1989.

The era of pure self-regulation is over.  The Legal Services Act 2000 separated the Bar Council’s representative and regulatory functions.  The BSB’s board now has a lay majority and a lay chair.  Our lay members bring expertise from all sorts of walks of life to complement that of our barrister members.  This is to be welcomed.

The Bar is not the same as it was in 1989.

For a start, half of new entrants to the Bar and around a third of the practising Bar are now women: over 5,400 out of some 15 and a half thousand practising barristers.  That’s progress, even if it remains the case that only some 12% of self employed QCs are women.  Progress has also been made, even if still more needs to be made, in greater diversity and in broadening access to the profession.

The Bar is less London centric, with many more chambers located outside London.

Solicitors now routinely draft many of the documents which, when I first came to the Bar, it was the exclusive province of the Bar to draft, such as pleadings.  Most of the old restrictions on what barristers can do have also been swept away.  The division of labour between barristers and solicitors is now largely a matter for the market to determine – what is efficient, what makes sense in the context of a case of the given scale and complexity, and what the client can afford – rather than being dictated by restrictive regulatory rules.  The referral model remains robust in many areas of practice, where the nature of the work makes that the best way of delivering services – my own field of commercial litigation is one such example – but it’s now a matter of choice: yours and your clients’.

There are now over 6,300 barristers, well over a third of the Bar, able to provide services on a public access basis.  Some of those individuals, admittedly not many as yet, but some doughty pioneers, have taken up the opportunity, now available under the BSB’s rules, to conduct their client’s litigation, in a one stop service, if that’s what the client wants.  To date 133 barristers have obtained authorisation to conduct litigation and it is still very early days.

Conversely, out of a solicitors’ profession of over 130,000 practising solicitors, there are currently some 6,560 solicitors with higher rights of audience, about 75% of whom practice partly or wholly in the area of criminal work, with the remainder doing only civil work.

In each of the last two rounds of silk appointments, 5 solicitors were appointed to the rank of QC – so, about 3 or 4% of successful applications were by a solicitor.  Whilst there is still only one High Court Judge who is a former solicitor, there are 75 former solicitors sitting as Circuit Judges and solicitors are well represented in the junior ranks of the judiciary.

There are over 2,300 practising barristers who are employed in SRA regulated organisations.

The introduction by the BSB of entity regulation, from this April, means that the option is now there for barristers to form firms or companies regulated by the BSB and to do so jointly with solicitors, if they think that is the best business model for their needs and those of their clients.  I don’t expect there will be a flood, certainly not initially, but eventually we are likely to see the BSB regulating some firms whose members include solicitors.  Indeed, in principle, an entity predominantly owned and managed by HCAs could opt for BSB regulation provided at least one barrister is an owner and manager and provided the entity fits the BSB’s published policy.

On any view, the boundaries have blurred, in terms of the spheres of activity of solicitors and barristers, the business models it is open to them to adopt, and how and by whom they are regulated.

So what’s next?  Fusion of the professions?  A single legal services regulator?

In his speech as Chairman of the Bar last November, Nicholas Lavender QC reminded us that there have been barristers since 1466 – our profession has existed for well over 500 years.  But over the period since I joined the profession myself there has been significant change, and the pace of that change is accelerating.  Will there still be barristers 500 years from now, 50 years from now, 25 years from now?  If not, will anyone care?

The one thing we can be sure of is… we’re pretty likely to get it wrong, at least when we try to predict in any detail what the future of the Bar will look like.  But does that mean it’s not even worth trying?

No.  In my book, it is more important than ever for the profession to seek to understand what the drivers of change may be and to cultivate the skills and the mind-set to be able to adapt.  We need to pay attention.

I am going to take a bit of time to survey the field.  What are these drivers of change?  They include regulatory changes, technological advances, economic pressures and unmet social needs.  Let’s take a while to understand them and then I’ll come back to my title and consider how these things may affect the Bar and its regulator, and what future-proofing might involve.

The legal sector has its own futurologists.

For many years now, Professor Richard Susskind has been making a living out of writing books about “The End of Lawyers?” – that was the title of a seminal work of his, published in 2009.   His thesis, if I might summarise, is about the ways in which technology can be used to commoditise mass delivery of legal services and write the lawyers themselves out of the picture.  Lawyers would either need to become entrepreneurs in this new world of digitised and commoditised services, competing with providers from outside the traditional legal sector, or will find themselves competing with one another for slices of a radically diminished cake, in the form of those residual areas of work that can truly be said to involve cutting-edge legal development, requiring bespoke solutions delivered by human beings.  And no sooner have you come up with the cutting-edge concept of today, than the commoditisers move in to transform it into the commoditised solution of tomorrow, and undercut your bespoke offering with a lower cost alternative – so like a shark, the innovators have to keep perpetually moving forward in order to survive.

Richard Susskind has however emphasised that there was a question-mark at the end of that book’s title and his more recent book had the more optimistic title, if you happen to be a lawyer, “Tomorrow’s Lawyers”.

In fact, he is a good example of someone whose predictions are sufficiently compelling that they make themselves true.  No major legal services conference is complete without him and his ideas have undoubtedly shaped initiatives, both by the largest law firms and by their regulators, to make online delivery of legal services a reality.

Indeed, it would not be an exaggeration to say that his ideas, and those of Professor Stephen Mason on regulatory policy, were influential in the formation of the government policy that led to the Legal Services Act 2007.  That statute was designed to shake up the legal sector, open up competition and remove obstacles to innovation.  It made it possible for legal services businesses to be wholly owned and managed by non-lawyers.  Many of these new business structures have already been authorised by the SRA.  The theory is that new entrants to the sector are more likely to be innovatory and their presence forces everyone else to up their game.

There is no question but that the impact of all this on the solicitors’ profession will be profound.  The view I regularly hear expressed, at conferences on the future of the legal sector, is one that sees High street firms all but disappearing, along with much of the middle tier, whilst the largest and most successful traditional law firms will face stiff competition from new entrants owned and managed by non-lawyers, or may choose to merge with some of these new entrants.  The landscape, in terms of who are the top 20 law firms, what services they focus on, and how they deliver those services will likely look very different, in 10 years’ time, from the way it does today.

But on the whole, when I go to the conferences at which these things are hotly debated amongst solicitors and their clients, there are very few participants from the Bar, if a single one.  I don’t think we can afford to be so sanguine that the Bar will be unaffected.

As a profession that is still predominantly a referral profession, we are not an island and we will be affected by whatever impacts those who instruct us.  As competitive pressures increase on law firms, the Bar can expect to feel the knock on effects.  If other avenues are closed to them, more solicitors will be forced to compete for the work done by the Bar.

Equally, it is arrogant and wrong to think that there is no scope for technological change to affect the work available to the Bar, or that all of that work falls into the “bespoke” category and is incapable of commoditisation.

There are, of course, some obvious differences between, say, online delivery of a conveyancing service or will-writing service, using automated processes to generate documents, and the kinds of services people look to the Bar for.   Some body has to go to Court and what they do when they get there can’t be synthesised by a computer program, now, or I venture to suggest any time soon.

Above all, unless and until the Imitation Game, as posited by Turing, is well and truly won by a machine, it will take a human being, an advocate, to influence the decisions of another human being, a judge, by finding just the right words, just the right delivery.  And that’s before we embark on the question of when, if ever, a computer program will master the art of cross examination.  I would suggest that is a test which is about as far beyond Turing’s Imitation Game as Turing’s own work on cryptography outstrips managing the Times crossword.

So, as I say, the Susskind vision of the future notwithstanding, it will remain the case that some body is needed, when it comes to Court work.  We may not travel there physically, however.  Already, and this will increasingly often be the case in future, we may interact with the Court remotely, by phone or video link.  But as long as there are Courts operating on an adversarial basis, representations will need to be made on behalf of litigants and a proportion of those litigants will engage experts to make those representations on their behalf, rather than representing themselves.  We are those experts and we had better not let anyone forget it.  The Bar will, however, face increasing competition from solicitors for that Court work.

What about advisory work?  There is some US research showing that a computer program using an algorithm does better than lawyers at successfully predicting the decisions of the US Supreme Court.  Perhaps I am being parochial here but I am not convinced that particular research result would be replicated here.  When you are trying to second guess the likely decisions of justices who are political appointees as well as lawyers, gaming theory may perhaps reach some of the parts that legal analysis alone does not.  But whether an algorithm can yet capture the highly nuanced play between precedent and principle that characterises our own system I prefer to doubt.  Set that one as a question in jurisprudence and debate.  Equally, predicting how the legal rules will play out on appeal is one thing, rules are by definition susceptible to some kind of formula that seeks to predict the outcome of their application, but I seriously doubt that a mathematical formula can predict the impression the judge or jury will form of a given witness in the witness box as accurately as an experienced advocate.

Therefore, the good news for the Bar is that second-guessing how the Courts will resolve cases which turn on the judge’s impression of witnesses, or novel or marginal cases that might progress up the appellate ladder, remains firmly cutting edge and bespoke and a job for us humans.

But that does not by any means cover the whole field of actual and prospective litigation.  I am sure that sophisticated decision trees could be designed to take sets of facts on areas where the law is clear and provide answers as to how those situations are likely to be resolved.  I am sure they are already being designed – or have been.  We should assume that in those areas of law where the same problems recur with great frequency and where the law has already provided clear answers, technology will come up with ways of delivering those answers to consumers without them having to reach for a lawyer to tell them what they could get from a standard legal textbook, if only they had some legal training.  The High street practitioner, jack of all trades, who having been posed that sort of question by a client might have reached for the Bar rather than the textbook will most likely be substituted by a branded website supplying answers, perhaps as part of a service provided by the consumer’s insurer, or for a subscription.  I’ve advised quite a number of providers on online offerings of that kind and I am sure what I’ve seen is the tip of a very large iceberg.

What’s more, if one leaves aside time spent actually in Court and time on advice that is truly bespoke, there are other commoditisable parts of our own jobs, particularly as we are starting out in practice. As a baby junior, I drafted pleadings in a class action where there were hundreds of claims against solicitors’ firms for negligent mortgage lending, sitting under global Particulars of Claim.  We thought ourselves very sophisticated at the time (this must have been the early 90s) in having designed a collection of about 12 or 15 macros covering all the relevant variants, each of which spat out a given paragraph when you hit the right key combination, so that the drafting could be done in a matter of moments once you had decided which set of variants was appropriate.  It’s not impossible that the job of selecting between those variants could now, itself, be automated, within parameters defined by the senior lawyers in the team, eliminating the need for juniors to do the job we did.

Certainly, I recall spending more time than I would have liked in massive disclosure exercises because we were cheaper than the paralegals.  It wasn’t exciting and did not hone courtroom skills but it paid the bills at a time in my life when that was quite a challenge and it’s also how I first met a number of solicitors who now are very senior in their profession.   Electronic review of disclosure is becoming ever more sophisticated and has certainly reduced the need for manual review on the scale typically seen in large scale commercial cases in the past.   We shouldn’t mourn that.  But we should ask how those starting out are going to pay their bills.

More positively, there are opportunities as well as threats in change and unless we lift our heads and notice what is happening around us we’ll miss those too.

There is both a threat and an opportunity in the fact that most lawyers are too expensive for most people most of the time.  The decent sized business who decides not to litigate over a significant claim.  The private individual who is trying to represent him or herself in civil litigation.  In a society built on a rule of law it is an indictment if most people have no meaningful means of access to the courts.  If we can’t do something to remedy that then we perhaps deserve to be written out of history as an expensive irrelevance to most people’s lives.

There is an unmet need, in privately funded civil litigation, which represents an untapped market for the types of services we can provide.  These are opportunities for the Bar to fill a very real gap in access to justice by providing a low overhead service which is better tailored their needs.

More needs to be done to get the message out there as to what the Bar can offer.  Those who can’t afford to have both a barrister and a solicitors’ firm, can come to the Bar direct, and those who can’t afford to have anyone conduct their litigation from end to end, may nevertheless be able to afford, and greatly benefit from, buying legal services “by the slice” from the Bar.

The term “unbundling of legal services” has been coined for this. In many ways, it’s just a logical development of what the Bar has always offered: we are an array of brains on sticks, for hire – pick the one you need for as long as you need it and no longer than that, then pop us back on the shelf.  The ultimate form of outsourcing, as flexible as we are needed to be.

At the other end of the legal services spectrum, the increasing sophistication of in-house legal teams amongst the largest institutional clients means that they may have no real need to interpose a law firm between themselves and the Bar and may instead choose to come direct.  At the same time, many of them are keen and highly sophisticated users of alternative litigation funding arrangements.  Their buying power in the legal services sector is such that when one of their General Counsel crosses the room at a gathering hosted by one of the legal directories, the tidal effect is observable as the assembled lawyers succumb to the gravitational pull.

Regulators are rightly concerned to protect vulnerable clients and safeguard the interests of the paradigmatic man-in-the-street consumer of legal services. But there is sometimes a failure to appreciate quite how much the power relationship is reversed in some other areas of the market, such that the concern is not protecting the consumer from their lawyer, so much as ensuring that their lawyer’s independence, on which our system of justice critically depends, is not undermined by their over-dependence on very powerful consumers of their services, or by financial pressures created by alternative funding arrangements.  We should not rashly and uncritically assume that the Bar is wholly immune in this respect.

Barristers need to keep their own antennae pricked for situations that could threaten their independence.  I once met a barrister who had moved to being in-house counsel in a major institution and he told me he kept a year’s salary saved up so that, if he ever had to give advice his employer did not like and would not take, he could walk.  I wondered how many of us at the self-employed bar could say as much. Yet we too readily use “independent” as though it was a synonym for “self-employed”, rather than a state of mind which, whatever your technical employment status, needs to be assiduously safeguarded.

So far, I have been focussing on drivers of change in privately funded work.  However, a dominant theme over the years I have been involved with the BSB has been the impact of legal aid cuts on publicly funded work.  In the year before LASPO came into effect on 1 April 2013, there were 573,000 new cases of individuals receiving some form of legal help on legal aid but over the ensuing year there were only 172,000 such cases.  There have been successive rounds of cuts, such that the Bar Council calculated that the average fee paid to a barrister presenting a defence case in the Crown Court dropped by 37% in the 6 years to 2013.  Whilst the Bar has been spared further cuts to its fees in the next round, the pressures on the system as a whole remain acute and, again, we can expect there will be knock on effects on the Bar as a result of the impact on solicitors and on the Courts.

The Jeffrey Review, which reported in May 2014, came up with a creditably independent analysis of the state of play in the field of criminal advocacy.  Over the past year and more, I heard quoted over and over again the bits in that report we like. Those bits described the independent Bar as a “substantial national asset”; compared in unflattering terms the perfunctory extent of solicitors’ advocacy training, relative to that required of the Bar; and said in respect of criminal advocacy that: “the legal market could scarcely be argued to be operating competitively or in such a way as to optimise quality. The group of providers [namely, the Bar] who are manifestly better trained as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price nor on quality.”  We at the Bar loved those bits and we quote them to anyone who’ll listen, at the least provocation.

But I rarely, if ever, hear anyone quote the bits where, in effect, he tells the Bar to wake up and smell the coffee.  Bill Jeffrey had some home truths to tell which deserved to be heard.  The clock cannot be turned back he said, so the Bar need to be prepared to adapt its business structures to meet LAA procurement processes halfway – it is fair to say he also expressed the hope that LAA procurement would in turn adapt to make that more readily achievable.  He hoped that barrister-led entities might emerge that would bid for contracts so as to have control of cases from the outset, possibly on the basis that in more straightforward cases their junior members would act as the single principal, or else bringing in solicitors to a barrister-led contracting entity.  He also pointed to the fact that other jurisdictions have a recognisable Bar specialising in advocacy, despite having career patterns whereby people start out handling the whole litigation process before moving on to specialise in advocacy.  As he saw it, in the field of criminal advocacy, something was going to have to give, either the business structures or the career paths by which people arrived at the point of being able to make a go of it at the self-employed Bar.

I’ll readily acknowledge that criminal advocacy is not my own field.  Maybe he’s got his forecasts wrong.  But I can’t help feeling that there’s something amiss when I see people so ready to quote the bits we like and pass over the rest in silence and without debate.  There are, in fact, now indications that Government is going to engage with Bill Jeffrey’s recommendations.

A number of judges have spoken out about the impact that legal aid cuts have had on the court process and have highlighted the human cost involved.  Increasingly, and on all sides of the debate, there’s a recognition that we have passed the point where we can expect the same job to be delivered for less and less public money.  Over the past few months I have spent a fair amount of time, together with our new Chair, Sir Andrew Burns, talking to members of the senior judiciary about how they see the future of the Courts and what, in concrete terms, is being done to make that future a reality.  Like Richard Susskind, they see use of technology as a key to the solution.  The Treasury is being asked to approve plans to devote a big chunk of investment to IT systems on the footing that this front end investment is the only way for MoJ to reduce costs over the longer term.

Lord Justice Leveson has published his proposals for how technology could help in streamlining criminal procedure, the Leveson Review of Efficiency in Criminal Proceedings. There will be fewer hearings, and certainly fewer when the parties gather physically at Court with far more extensive usage of video links.  Richard Susskind was commissioned to produce a report on how to reform the small claims procedures, which makes proposals modelled on E-bay style online dispute resolution. Similar approaches might be applied in some other parts of the Courts.  It’s been mooted that a more inquisitorial approach might be adopted in the lower levels of the Courts, although I think it is recognised that would have implications for the numbers of judges needed and might just shift cost from legal representation to the Court system. That’s just the start of what will no doubt be a developing discussion about how the Courts should adapt.

There’s no consensus as yet on the solutions but the consistent themes emerging are that hearings need to be reserved for situations where they are truly needed and that those situations are many fewer than is currently assumed.

Those operating as advocates in this brave new, post-austerity world will need to hone their skills in using a remote link, where that’s appropriate, and will need to make realistic judgements about when and how to resist the suggestion when it is not appropriate.  They’ll need to navigate electronic bundles as sure footedly as we of the old guard navigate our trial bundles bristling with yellow post-its and multi-coloured highlighting.

They’ll be lucky if the other side is represented.  Outside the much reduced scope of publicly funded representation, it is ever more frequently the case that barristers find themselves facing self-represented litigants.  That brings into sharp focus the tension between a barrister’s duty to their client and their duty to the Court.  Barristers generally are punctilious about how they manage that, but self-represented litigants can, understandably enough, fail to understand the balancing act that’s required and can have unrealistic expectations of the barrister on the other side.  We at the Bar Standards Board have certainly seen an escalation in complaints by litigants on the other side that are found to be misconceived and based on misunderstandings of the barrister’s duties.  Had both sides been represented, those complaints most likely would not have been brought.

The Commercial Court may seem and indeed it is, by comparison, a privileged and rarified world but that doesn’t mean it will be completely insulated from the winds of change.  I listened to one senior judge outline how his last arbitration before going to the bench had been run on chess clock principles. Each side was given the same, stringent budget of time and had to decide where and how to deploy it.  More time on one issue or one line of cross examination left less time for other points. The guillotine was merciless.  Clear eyed judgments had to be made and adhered to as to which were the points that carried most value, in terms of their impact on the outcome.

I can imagine clients in the Commercial Court wanting to be able to choose between that approach and the traditional Full Monty.  Certainly, if both sides agree they’d rather save costs by a truncated process, it seems to me they should have that option.  We may well see this piloted before long.  Cutting to the chase in that way will require the most highly developed skills on the part of the barristers involved.  No time for the points that almost work or to have three goes at making your best points.  You’ll need to be right first time in identifying your best points and right first time in the way you develop those.

I once attended life drawing classes where there were timed poses.  You started with 15 minutes and didn’t manage to do much with it. Then you had a minute, 3 minutes, 5 minutes and then back to 15. You made a lot better use of that last 15 minutes than you had of the first.  Perhaps advocacy training needs to focus, in depth and as a priority, on “less is more” as a serious learning objective.  Shorter written submissions.  Briefer oral submissions.  A real awareness of just how much else is crossing the desk of the person you are addressing that day and how very little time they have to understand and decide on your case.

If we are to square the circle on the challenges facing the publicly funded sector, you might think a similar time-managed approach would make cases shorter and less costly for the state. But again that requires more highly skilled advocacy and better preparation, not less, which is going to be difficult to achieve if the rates paid continue to cause talent to exit to other better funded areas.  And it also requires a preparedness on the part of judges to insist on the timetable, which can’t be done if one side is facing, unrepresented, a life changing threat of some kind.

That’s an overview of some of the drivers of change, the reasons for thinking change will accelerate rather than the contrary and some of the challenges that will create for the Bar and for its regulator, over coming years.   So let me at last turn back to my title.  What’s the role of the regulator in all this and what do I mean by future-proofing the Bar.

It will be for the Bar to figure out for themselves how to seize the opportunities and navigate around the challenges that the future holds.  I don’t have a route map.  I’m not even sure that I’m right about the destination.  You’ll need to future proof yourselves and I can’t tell you how to do that.   But I do have a clear idea what the role of the regulator needs to be.  In very broad terms, since we can’t be sure of correctly predicting exactly what the future will bring, the job of the regulator is to make sure we remove unnecessary obstacles, whilst preserving the standards and expertise which have brought the Bar international recognition.  We need to free the Bar to decide for itself whether and how to adapt, if that proves to be necessary as the market changes.

Let me highlight three themes, in terms of the BSB’s role.

First, whatever else may change, it remains the case that advocacy is special and it needs and deserves specialist regulation.  Let me expand on that.

Our system of justice depends critically on the competence and honesty of those who appear before the Courts and their ability to make the right judgments about the relationship between their duty to the Court and their client.  Regulation of advocacy therefore engages the public interest in a way that includes but goes far beyond the interests of the individual receiving the service.  Yes, the immediate consumer of the service matters, but so does the administration of justice and the rule of law.

For all the reasons I have explored, I don’t expect the Bar to grow as a proportion of the population.  If anything, I would expect it to shrink as a proportion and perhaps also in absolute terms.  But I would also expect that cadre of barristers to need to be more skilled in future, rather than less so, deployed only on that smaller number of occasions when, in the brave new world I described, hearings are truly necessary and the complexity of the matter really warrants expert representation.

Regulatory boundaries have blurred and some, even some voices in the senior judiciary, suggest there are just too many legal services regulators.  Surely one would do.  Nonetheless I continue to make the case for specialist regulation to anyone who’ll listen.  It’s not that I can’t imagine life without the pleasure of BSB meetings, but I genuinely believe that it’s in the public interest that the BSB should continue to exist as a separate specialist regulator, rather than there being one monolithic legal services regulator covering the entire spectrum.

I can’t change the fact that a portion of those who appear in court or in Tribunals are regulated by the SRA or by CILEX and are not directly within the control of the BSB.  It’s a feature of our legal services sector that none of the regulatory boundaries were neat and tidy to start with. They were largely historical accidents and they are even messier now than they were originally.  But the BSB, as regulator of the vast majority of those who in practice specialise in advocacy in the higher courts, can use that position to insist on the style of regulation it thinks is best fitted to that, rather than a one size fits all approach.  We can use that position to claim a voice, as regulator, not as trade union, on matters that adversely affect the way the system of justice works.  That voice may then have a better chance of being heard.  Where we lead, other regulators with a stake in advocacy may follow.

But equally, if over the medium and longer term we are talking about a shrinking rather than growing number of individuals who are regularly providing advocacy services in the higher courts, then on any view we should do all we can to bring “into the tent” those solicitor advocates who are doing the same work we do, who want to be regulated by the BSB and who want to mark themselves and their firms out as adhering to the higher standards of training we consider necessary.  How people originally acquired their professional title should, in future, be less important than the job they are actually doing and their willingness to fully commit to the same standards as ourselves.

On the other hand, we at the BSB are not attempting to regulate commoditised delivery of automated services.  The SRA has geared up to that task. It has to a significant degree shifted its focus from people to entities, systems and processes.

We’ve geared up to authorise entities because, if barristers want to operate through entities, it is a statutory requirement under the Legal Services Act that those entities need to be authorised.  But the focus of our regime remains on the individuals: individual responsibility, individual integrity, individual competence, because in the end it is an individual who stands up in Court.  That doesn’t change just because the individual happens to be operating through an entity rather than being self-employed.

To the extent that systems and processes do matter for the work we do, they are every bit as relevant for the self-employed Bar as they are for any barrister who happens to form an entity.  Members of a set of chambers need collective systems for ensuring, for example, client confidentiality in email communications, or conflicts checks, or management of ethical walls. That’s why we have introduced proactive regulatory supervision, to make sure members of chambers have taken steps to address these sorts of collective risks.  We’ve had positive feedback from many of you that you’ve found supervisory visits to be of value.

Secondly, the BSB needs to develop a regulatory approach which is flexible, intelligent and capable of adapting to and reacting to change.  What does that mean in practical terms?

An important part of our job as a regulator is to get out of the way.  We need to liberate people to plot their own course, unless there’s good reason to restrict them in what they can do.  Hence, we have made rule changes that let you choose the business model that suits you and let you choose whether or not you want to combine advocacy and conduct of litigation.  If you don’t want to, that’s fine, but the choice should be yours.

We need to avoid imposing unnecessary burdens.  For example, we took the view that a way needed to be found to enable those who did want to conduct litigation or get money on account of fees to do so without holding client money.  Regulation of client money is the source of a huge amount of direct and indirect cost in other regimes and much of the SRA’s effort goes into policing client money and dealing with breaches.  Instead of establishing a client money regime, we went to the Bar Council to discuss whether they’d be willing to spearhead development of a third party service and that led to the development of BARCo.  They developed it independently of us but taking into account our views on the risks that it needed to address.  I think that is a good example of constructive engagement between the regulatory and representative arms.  We framed our rules so that you can, if you wish to do so, use BARCo or any equivalent FCA regulated service.  The other legal services regulators like the idea so much they are thinking about adopting it themselves.  If there were a single legal services regulator imposing a one-size-fits-all regime the Bar would be subject to an expensive client money regime like everyone else.  As it is, we’ve shown the other regulators that there are alternative ways to crack the client-money nut and you now have this additional option available to you, without having to be subjected to the costs of a client money regime.  Again, whether you make any use of that is entirely a matter for you.

More broadly, the new Handbook introduced in January 2014 represents a fundamental overhaul in the BSB’s regulatory approach.   In a world that is changing at a faster pace, highly prescriptive rules may miss the moving target.  You can’t keep redrafting the rules as circumstances change.  We’ve sought to strike a better balance, in terms of the level of detail in the rules, and we’ve made it clear that when a particular situation hasn’t been specifically dealt with you still have a responsibility to apply the core duties.    That makes demands on you to apply the code intelligently and taking your best stab at what approach best fits the outcomes we’ve articulated.  It also requires a more intelligent approach from the regulator in enforcing the code.  We’re moving away from a box-ticking approach to compliance.

As already touched on, our new supervisory regime will seek to identify and manage risks before they ever become an enforcement issue.  We’ve overhauled our internal processes for collecting and managing information which might point to a need for regulatory intervention.  We’re about to launch Risk Outlook, a periodic publication that will share with you risks that we are currently focussing on and why.

Thirdly, the BSB recognises that we need to be equipping new entrants to the profession for a world which is going to continue to change around them in ways we can’t reliably predict.

We are embarking on a major program of reform of Education and Training, stretching forward to 2017.  We’ve consulted on a Professional Statement which will define what training needs to equip the new barrister to do on day one.  We’re about to launch, tomorrow, a major consultation paper on reforming the route by which people get through to day one.  I don’t have time to go into the detail tonight, and indeed others at the BSB are better qualified than I am to go into the detail, but I’d highlight two elements.  We’re thinking hard about building more flexibility in to the routes by which people access the profession, for example making it more feasible to work alongside acquiring the building blocks towards eventual qualification.   That may be important in safeguarding the future diversity of the profession.  We are also thinking about what skills the professional stage of training needs to inculcate.  Clearly advocacy skills remain paramount, but client facing skills, IT skills and business skills all have a role.  Please have a look at the paper and give us your views.

Lastly: here, very tentatively, are some thoughts about what all this may mean for the future of the Bar.  In all this change, what won’t change is that there will be a hard core of situations adjudicated by the Courts in which there’s still a need for expert representation.  But the volume of that work, per capita, may be less than sustains the Bar now and the competition for it ever more acute.  Those doing it may need to be very highly skilled, to cope with highly focussed time-managed hearings.  Barristers will need to strike a balance between broadening the scope of their services, to meet client demand and pay the bills, and ensuring that their expertise as specialist advocates is not diluted.  Acquiring the necessary levels of expertise will be even more of a challenge if there is much less of the less complex type of advocacy work on which people used to cut their teeth.

All of that may create a need, as Bill Jeffrey predicted, for alternative business structures or alternative career paths.  In place of one dominant model and career pattern, a mainly self-employed Bar, whose members are there from cradle to grave, we may have a multiplicity of approaches.  Barrister-led firms offering one-stop services.  Others following a New Zealand-style career path, where they move to self-employed status at the Bar after some years in a firm.  Yet others, maintaining the traditional model.

It will be essential that the Bar maintains a sense of its own identity, as a cadre of people bound together by their shared commitment to excellence in advocacy and high ethical standards.  The Inns, the specialist Bar associations and organisations like Bar Pro Bono are amongst the ways we build a community of the Bar.  Feeling yourself to be a member of a community who share the same high standards and wanting to be recognised as a worthy member of that community is more effective than any rule book can ever be in ensuring compliance.  But that community will need to be inclusive rather than exclusive if it is to keep pace with the way employment patterns and career paths may change, not for example treating the employed Bar as second class citizens, as they sometimes tell me they feel to be the case.

I am however optimistic.  The Bar meets a real need. It has proved itself tremendously resilient over such a long time precisely because it meets that need so well.   It will still be recognisably the Bar, even if there is greater variation in the business models adopted and more flexibility about whether, in a given case, the barrister takes on the whole case or only the advocacy element.  If in future, alongside those operating in the traditional way, there are also low overhead, advocacy-led firms and wider provision by the self-employed bar of direct access services, we’ll have successfully broadened the range of choice for clients and will have helped close some of the existing gaps in access to justice.

At Bar Council a couple of months ago, Alistair MacDonald QC, the current Chairman of the Bar, proposed that the Bar needed to engage in debate about its own future.  He’s right.  I hope this small contribution will help towards getting that debate going.  And no doubt you’ll be telling me, in 2039, that I have got my predictions every bit as wrong as the predictions that were made to me in 1989.

Don’t stop thinking about tomorrow.

It may be even better than before.

City Law School, City University: widening participation in the Legal Professions (July 2015)

Let’s start with some figures.

Based on the last Bar Barometer report, which gives figures through to 2012, half of new entrants to the Bar and around a third of the practising Bar are now women: over 5,400 out of some 15 and a half thousand practising barristers. That’s progress. But only some 12% of self employed QCs are women. 82% of self employed QCs are men.

45% of the employed bar are women. Something over 1,200 out of 2,700. In itself that’s good but it also reflects the fact women are more likely than men to leave self employment. Proportionately more women leave self employment and they do so earlier in their career trajectory. The 2011 exit survey found as many as half of women leavers were leaving in the first 7 years of practice.

There are many fewer QCs at the employed bar. Only 26 in total, 3 of whom were women. That’s 0.2% of women at the employed Bar, who’ve achieved the rank of QC. I would be prepared to bet many of those individuals probably achieved that rank before they switched to employed status. By way of comparison 4.5% of women at the self employed bar are QCs.

As matters currently stand, your chances of making QC are very much smaller if you abandon self employed practice for employment and a much higher proportion of women do just that.

You would find a similar pattern for black and minority ethnic barristers. More of them leave the self employed profession for employment.

The fact is that as the legal profession is currently organised, employed barristers find it much more difficult to gain the necessary high level advocacy experience to support an application for silk.

Knocking around in the lower courts whilst relatively junior is one thing. Liberating senior individuals from other demands on their time so that they can prepare substantial court cases is just not a model many law firms have found profitable. When it gets big and complex, most of them prefer to out source to the Bar and it is the big and complex stuff that gets you silk. You may have a very rewarding and interesting career as an employed barrister in an SRA regulated law firm but if silk is what you are after you’re unlikely to get it by that route.

If, therefore we are taking as our measure of progression, achievement of the rank of QC then we need to crack that in one of two ways:

Either: we find ways to retain women and minorities within the self-employed Bar, instead of seeing them vote with their feet a few years into practice.

Or: those at the Bar who want to do so band together to establish advocacy focussed firms, so that there’s the option of pursuing a career as a specialist advocate to the level of silk, whilst being employed.

Or both.

We know from exit surveys that women and black and ethnic minority barristers are more likely than white men to cite financial factors for leaving, uncertainty about their income or not earning enough.

Women are much, much more likely than men, of any ethnicity, to cite as reasons for leaving pressure of work, inflexibility of working arrangements, a sense of lack of support from clerks and colleagues and desire to spend more time with their family.

What is to be done?

Self employment at the Bar is a very tough path and people need to be realistic in their expectations about that. Nothing is going to change the fact that getting a trial up is exhausting, stressful work. Not knowing where your next piece of work is coming from is just as stressful in a different way.

But there are things we can do to make this more tolerable.

First, the financial factors.

Everything tells us that there’s an earnings gap by gender in society at large, which is mirrored at the Bar, and my own observation is that gap opens up early, starting even before women have children. Then as they do have kids, it makes it harder for them to afford the kind of child-care that you need to sustain the flexibility your practice needs. Some of the reasons for that may lie in women not being at ease with their own worth – L’Oreal came up with that slogan for a reason.  In the wider world there’s a lot of research about the way women fail to do themselves justice in pay negotiations and I imagine there’s the same phenomenon at the Bar. Let’s all mentor ourselves and each other in demanding our dues and make sure our clerks support us in doing so.

We need to ensure everyone has an equal crack of the whip in winning work on their merits. Under the code of conduct, the BSB requires work allocation to be monitored. I did that job for 7 years for my chambers, together with a male colleague. We developed very detailed reports which analysed the data, cohort by cohort, anonymised by gender and ethnicity for the whole of chambers, not just our most junior members. I analysed not just the allocation by the clerks of work that came in unallocated but also the relative success of individuals in converting opportunities to work and in winning work that came to them by name. The information these reports produced were hugely useful in creating a picture of what positive career progression should look like and spotting when someone appeared to be out of kilter and a helping hand might be needed on practice development.

My impression, but I would be the first to accept mine was far too small a sample to generalise from, was that women might be finding it harder to progress to winning work in their own name in what you might call “hard core” commercial work, as opposed to regulatory work.

I think it would be hugely constructive if we could look in a collaborative way at this from both sides of the profession. What research tells us is that interviewers tend, without even being conscious of it, to select people like themselves.  Well-intentioned, right-thinking people do this, unless they are taught how to intercept and challenge their own unconscious assumptions.  And that’s, of course, exactly why we all now recognise the need to train people in equality and diversity if they are on an interview panel. But decisions as to who to instruct at the Bar are typically made by the senior ranks of law firms, and the vast majority of those in the senior ranks are white and male. When they phone up asking for a big hitter for their trial, what mental image will they have in mind? Law firms are doing lots of good work to address the issues around career progression in their own ranks. Initiatives like the Law Society diversity charter are greatly to be welcomed. But perhaps we could together extend that work to ensure that those instructing the Bar are alert to their own unconscious assumptions and don’t fall into the trap of assuming that the little 5 foot blond woman barrister isn’t the big hitter they are after. She may be the next Jonathan Sumption.  The same is equally true when what’s in issue is patronage within chambers, when senior members of the profession are asked who to recommend be brought in as a junior or vice versa.

Next, the biological factors.

Last I looked most of my male colleagues had kids. Assuming you have a partner in parenthood, this is a shared challenge. I have three children, and although they are now getting very grown up I haven’t forgotten the challenges of having a young family and a self-employed practice. Crucially, I have a husband who was willing and able to rise to his share of the challenge. Equally crucially, love my children though I do, I never had the ambition to be a Tiger mother, hovering over them as they simultaneously do their Kumon maths whilst practising the violin. If you are going to combine a career at the Bar and motherhood, you are going to have to relinquish control to others. If it’s his turn to mind them while you get on with some work, don’t back seat drive.

A self employed work pattern has pluses as well as downsides so make use of them. You are doing a case involving heavy paperwork. Work from home and break for tea with the kids when they get back. You may have to go back to your desk when they’re in bed but you’ve not been in chambers until 11 at night without seeing them. Your case settles. Leave early and surprise them at the school gate. You don’t have to meet anyone else’s billing targets as long as you can pay your own bills. To my mind that still does make the Bar more family friendly than the traditional route to partnership in a law firm. And if you are already trying to juggle the Bar and kids, do check out the Bar nursery.

Lastly, the emotional factors.

In my experience (and I recognise this is a generalisation) women tend to beat themselves up more over their failures. And you will have some failures at the Bar. You’ve got to be resilient but it helps if you have people to talk to about it. Don’t wait for someone to set up a mentoring scheme for you. Find your own mentors.

Above all, find the right life partner. You may think this nonPC but I am deadly serious. You need a supportive partner with whom you can negotiate. If you do have a family then practically every day will involve a negotiation over who is doing what. There needs to be give and take in that. I know one couple, both at the Bar and with young kids, doing the kind of commercial work that produces very long, heavy trials, who discuss and negotiate who gets to say yes to the next big trial. He’s taken silk. Now she’s in the run up and he recognises that she needs the court exposure more than he does right now, so she takes priority. It takes real grown ups to know when to step back and when to step forward in that sort of negotiation, and it takes real love.

So there you have it, all you need is love!

Life-work balance and other Conundrums – a speech written for a Clyde & Co women’s event, 2013

I’m addressing these issues from the perspective of the self-employed Bar. Which is to say, from the perspective of someone who has no personal experience of being employed within a law firm and who is now almost certainly unemployable.

I do however have to spend a fair amount of my time considering what the future holds for law firms, since part of my practice involves advising on applications to form Alternative Business Structures. And, as Vice Chair of the Bar Standards Board, I am also having to think about how practice at the Bar may alter in future, under the combined influences of competition, economic pressures and regulatory changes.

Perhaps later on we can debate: what are the points of similarity and difference, in women’s experiences on the two sides of the profession; and whether and how we may be able to help one another in practical ways.

I’m going to start with some stuff that risks being heard as rather down beat. Bear with me. But you can’t sensibly debate solutions to challenges unless you know what you are trying to solve.

2 weeks ago I attended an event run by the Bar Standards Board for chambers Equality officers and the keynote speech was given by Dame Linda Dobbs. She was introduced as the first and, so far, still the only black minority ethnic individual to be appointed to the senior judiciary. How does she feel about that, I wondered, as opposed to being introduced by reference to her contributions to developing the law when on the bench or her notable cases while at the Bar.

Samuel Johnson said, of women preaching, that it: “is like a dog’s walking on his hind legs. It is not done well; but you are surprised to find it done at all.” It can sometimes feel as though women who are relatively senior in the profession are pointed out as if we were freaks of nature in the same vein: the “story” is our gender rather than the substance of what we’ve done. And of course that’s not limited to the lawyers. Years ago I represented Mercury Asset Management in an epic court battle with Unilever over management of the investments in the Unilever pension fund and the media managed to turn this highly technical dispute about active risk levels within an investment portfolio into a “cat fight” between Carol Galley and Wendy Mayall, with many column inches devoted to the handbags they each carried to Court.

When appointed, Linda Dobbs expressed the hope she would be the first of many BME appointments but in fact at the time of her retirement from the bench no other BME practitioners have yet been appointed to the senior judiciary. There are still very few women in the ranks of the senior judiciary – Lady Hale is unlikely to see another woman on the Supreme Court bench during the period of her appointment, I would predict. Lord Sumption, in typically provocative mode, went so far as to argue in a speech a year ago that “We need, as a society, to have an honest public debate about the hitherto unmentionable subject of positive discrimination.”

I think that idea is anathema to most of us and, in fact, if you read the speech you’ll see he does not in the end advocate that course. But why did he even feel the need to throw down that gauntlet?
He wanted, rightly, in my view, to challenge the idea that all will be well if we just sit tight and wait for the 50% or more of new entrants to the profession who are women to make their way up through the echelons; and he wanted to highlight that the biggest challenge we now face is one of retention and career development.

The figures are pretty stark across the Bar as a whole and of course it remains the case that the senior judiciary are largely drawn from the Bar. The Bar has a very big problem with retention of women and with the fact that women on the whole earn a fraction of what their male colleagues earn over the course of their careers.

I became a tenant at Fountain Court in 1989. I was the 3rd woman ever taken on as a tenant, and both of those senior to me left chambers within a few years. 24 years later, we still have only 12 women out of 67 tenants. I am the only woman silk out of 29 silks in chambers. That pattern is entirely typical for the Commercial Bar.

In my capacity as Vice Chair of the Bar Standards Board I look at the figures across the Bar and we see women and ethnic minorities are still clustered in chambers doing publicly funded work, family law and crime, even if that was not the area of work they identified as their goal when they left Bar School. We see women leaving self employed practice for employment or leaving work altogether at a much higher rate than men, with 59% of women barristers leaving the profession before they reach 12 years call (as compared to 34% of men). 28% of those women said they left primarily because of childcare responsibilities and the other main reasons they gave were financial concerns and inflexible working practices.

A huge amount of progress has been made – and it’s important to emphasise and celebrate that.
I would hope that in today’s world few would now dare to mete out the kind of naked discrimination that Linda Dobbs described encountering in her youth.

Between 1949, when the first two women to gain the rank of QC took that title, and 1999, a period of 50 years, there were only just over 100 women made silks. It only took another 9 years to double that to 200 women ever appointed silk. By the time I took silk in 2006 I was number 176 in the list of all women to have taken silk and I believe the number now stands at 299. So, on any view, that’s an improvement. Although, to put it in perspective, it is still the case that only some 12% of QCs currently practising are women.

I was equality officer of my chambers from 2006 for some 6 years and I can say, from the heart, that we have done a huge amount of work to ensure that we have cutting edge equality and diversity policies; we have confidence that our recruitment processes are as fair and merit based as we can make them; and we carry out detailed monitoring to ensure that there is fairness in the way the clerks handle work opportunities in those situations where they are suggesting names to solicitors, rather than the solicitor coming and asking for a specific individual.

Yet we are still seeing many more women than men leaving a few years into practice. And we observe the same happening in many of the firms who instruct us: so, the women solicitors you get to know as a junior practitioner all too often are not still there as you become more senior and you lose an important part of your professional network. From the firm’s perspective, that’s a huge loss of their human capital.

So what is the solution?

I’m not such a fool, or so arrogant, as to claim I have it cracked. My own life-work balance is at best a work in progress. But here are some very personal reflections.

The first and most important is to love what you do for a living, to the point that it makes as much sense to you to talk of “Work-life” balance as the other way round. If that’s not how you feel about it, change it. Some years ago I heard about a guy who went off to India to find himself and discovered he was a lawyer. I really empathise with that guy. Being paid to argue for a living – what’s not to like? I find commercial litigation endlessly fascinating: you get windows onto other people’s very different worlds, rubix cube-like intellectual puzzles, the gladiatorial satisfactions of adrenalin and beating the other lot, or the more constructive pleasures of brokering a way out of a problem and reaching a practical solution for your client.

If you love what you do – not every single minute of every day, no one manages that, but most of the time – and if it is a huge part of who you are, then the whole business of balancing that with other aspects of who you are immediately takes on a different aspect. If you are just doing it to pay the bills, you are always going to begrudge the time it takes away from other things you value more.

I believe we at the Bar do have some advantages over law firms, in that we are self employed and therefore by definition we work flexibly. That can mean a crazy alternation between feast and famine: one week you are working through the night to meet deadlines and the next week two or three things settle or adjourn and that clears a chunk of your diary. If you can manage to ride the psychological rollercoaster of these ups and downs you can squeeze a lot of life into the pauses in between. Part time practice at the Bar, in the sense of limiting work to set days a week, may be pretty tricky to pull off, at least without a considerable impact on your practice. But in the end you are the one who gets to say when you are too busy to take on another piece of work. At some phases of your life you may hit capacity sooner than at others. Many of my male colleagues make space in their day to nip out for a game of squash – my younger women colleagues are more likely to make time to get to a child’s parents’ evening. You need full time child care, in my experience, because when these gaps will come is inherently unpredictable, and you need to be a good and generous employer so that your child care is as committed and as flexible as you yourself need to be; but if you can afford that, then this unpredictability does have some rewards.

There’s also an element here of what your own value proposition is for clients. Personally, I have never felt comfortable over-trading, stacking trials end to end or double-booking myself. I’m not a seat of pants merchant; I may grasp detail fast but I do think that detail matters, since I find cases are more often won on the facts than the law (and a nice point of law only invites appeal). I believe when clients pay for your full attention that’s what they are entitled to get. My philosophy is never to compromise on my commitment to any client I take on – and in the middle of a lengthy trial that is quite literally all-consuming – but I may perhaps take fewer cases on at any one go than some of my colleagues at the Bar would be prepared to do. That means I can get some uncomfortable downtimes, when I finish a run of things or have a number of things settle and I suddenly find myself with a gap in my diary because I haven’t got “back up” work pencilled in. I have to train myself to use those downtimes productively and not to lapse into paranoia. Not always easy, because self employment is a pretty paranoid state, but it does mean that I can, if I discipline myself, use these downtimes to catch up on non-work commitments and rebalance.

I work from home a great deal – in fact the busier I am the less likely I am to come into chambers. Whilst the women in chambers may have started this trend, many of my male colleagues follow a similar pattern. Most of what I do is delivered by email or on the phone and where I am when I do it is of no interest to my clients as long as I get the job done. When wrestling with something very complex, it’s good to be able to screen out minor distractions. When very busy, it’s a boon to gain that additional time at either end of the day that would otherwise be wasted in travel. When I am less busy, that’s the time to network and catch up on news within and outside chambers. In that respect I may be luckier than many of you in that I don’t have to manage or supervise lots of people on a day to day basis. However, I am very clear with my clerks that when I say I am working at home, I am working and contactable, and when I mean I fancy a bit of mid-week gardening then that’s what I tell them I am doing. Nothing brings working at home into disrepute faster than the idea that it’s just a euphemism for sneaking some time out.

I appreciate that much of this may seem like an unaffordable luxury when translated into the context of a firm and measured against the yardstick of the billable hours culture. But perhaps that just highlights the need for cultural change. I have seen individuals at an American law firm keep their jacket on the back of their chair, in order to appear to be already in the office at 6am, and still be at their desk at 11pm, having spent a chunk of time in between chatting about the football results and generally wasting time, some of which may later have been accounted for in ways that did not bear too much scrutiny. Scary billable hours targets and an extreme macho culture won’t necessarily breed efficiency. And billing the client to within an inch of their life may not build a sustainable business. I am not saying anything at all new in pointing out that, if they listen to their clients, law firms may in any event need to make the cultural leap from billable hours to value. In building a value proposition for clients, externally, maybe firms will be able at the same time to build a more flexible approach to how, internally, they value and reward the contributions that individuals make to building the business of the firm.

Another, and related, part of that value proposition is this: all work and no play makes Jill a very dull girl. Relentless work, without respite, is not a recipe for creative thinking or intelligent risk-taking (as opposed to being a recipe for 3 a.m. cock ups which create risk of an unintended kind and are great news for those of us at the Professional Negligence Bar). Karl Marx anatomised the phenomenon of “alienation”, where human beings become cogs in the machinery of a newly industrialised world, condemned to repeating routine tasks which allow no self expression. We now face the economic challenges of a very different developmental stage. In Richard Susskind’s terms, legal services are going to divide ever more sharply between firms that operate at the cutting edge and those that operate in the space where services have been or are rapidly being commoditised. We all need to work smarter, because harder just isn’t going to cut it. If a firm’s ambition is to inhabit the frontier, where it can charge a high premium, then it surely needs to make itself a go-to place for creative thinkers. Devoting some time to why it is that most self-employed people don’t just down tools when they’ve earned enough to pay that month’s bills, what makes them motivated and efficient, and how they arrive at a rewarding work-life balance, is not such a daft thing for a firm which harbours those ambitions to spend a bit of time thinking about.

The statistics around retention should be a real worry for firms. It would be foolish to assume that this is just Darwinian selection doing its job and an example of survival of the fittest. The selection process is not necessarily sifting out those best able to take your firm to where it needs to be in 10 or 20 years time. The risk is that it’s sifting out those who are best able to suppress every other interest in their lives and concentrate on stacking up the billable hours. In other words, it rewards conformity to a particular billing culture, which may be a poor proxy for the value which the individual has delivered to their client’s business and a poor predictor of which individuals have most to contribute to the firm’s long term development. When the paradigm changes (as I believe it will, the only question being when) firms that have staked everything on a continuation of the status quo may have lost the very portion of their work force best able to adapt to the brave new world. Giving people more freedom and flexibility about how, where and when they work in order to contribute their value to the firm may be the recipe for stemming the haemorrhaging of talent, preserving the firm’s investment in them, and indeed returning that investment with dividends, but it requires a big leap of faith and a lot of trust.

In short, I believe there is a good business case for building a firm in which individuals who are ambitious and prepared to work hard can also make time in their lives for other things which they find interesting and fulfilling, whether that be family commitments, commitments to their community or other driving interests. Yes, of course, sometimes you’ll have to drop all of that to deal with your client’s problems in the given moment; but if the moments when you have to do that start to blur into a continuum you need to start sharing those clients with others and building your lines of succession, and doing that can only be good for the sustainability of your firm’s business model as well.

Of course, the other thing that may change in all this is the partnership model, which creates what, to those outside the legal profession, looks like an artificial step change, from employee to participant in equity, timed as precisely as possible to coincide with the period in their lives when many women are most acutely challenged in balancing the demands of work and family. I can think of examples of women in very senior positions in large companies, whose packages include a significant equity stake in those companies. Their journey from junior employee to decision-maker and equity participant no doubt had its own challenges but at least did not involve a once and for all chance to pass through the eye of the needle at the very time they were in the middle of maternity leaves or life with young children. An ABS that learns this lesson may be able to mop up a lot of ambitious female legal talent.

In terms of other potential drivers for change, I would be interested in your views on whether the Law Society Diversity Charter has been effective. It has occurred to me to wonder whether there should be a matching charter as between solicitors and the Bar. That’s perhaps too large a debate for tonight and any such initiative would take time.

More immediately, I would urge on you that each one of us has a responsibility to do as we would be done by when we are in a position to hand out professional patronage. As a silk, when I am asked which junior I recommend, I must make sure that unwarranted stereotypical assumptions don’t creep into my judgments, just as I would hope that others will assess me on my own merits. When you as solicitors are asked which associate to bring onto a case, or which barristers to instruct, be alert to your own natural human tendency to fall back on assumptions and stereotypes. The same applies when you are sitting on a partnership panel, deciding whether the male or female candidate best merits partnership. We all unconsciously do it, as any number of psychological experiments illustrate, unless we get into the habit of consciously challenging ourselves. For example, when someone says to you, “we’re going to need a real big hitter for this trial”, what’s the mental image that comes into your mind of the person you are looking for? Would you more readily assume that a man would fit the bill? When you read a description of a barrister as “tough”, do you see that as a positive quality if they are male but as a slightly scary quality, which may make them a difficult personality to work with, if they are female? When you hear that someone took time off work for the school play, is your attitude more positive if that someone happens to be male? Each and every one of us shares responsibility for bringing about the cultural change required for a truly open and meritocratic society and that starts with taking responsibility for our own behaviour and being self aware about our own decision-making processes.

This horizon scanning is all very well, you say, but what can I do here and now about my own life-work balance?

Here’s where I get to my non-PC advice, which is that the biggest positive contributor to life-work balance is choosing the right life partner. If your relationship is one of mutual friendship and support, with the shared goal of each of you having a rewarding career and a functional family life, then you’re a long way there. Pretty much every day will involve negotiation about how, today, in practical terms, that’s to be achieved (most acutely, if you have young children) and that negotiation will just wear you down if you are negotiating with someone who always has to win and who will never genuinely see your goals and needs as being as worthy of support as their own. If you are the primary bread-winner, then the challenge for you is not to fall into stereotypically male patterns of assuming that your economic primacy automatically buys you a dominant position in those negotiations. It’s not the fact you’re earning more that buys you out of filling the fridge, it’s whether you’re more time-starved than your partner. Above all, where you delegate to your partner (whether filling the fruit bowl or overseeing the homework), accept it may not be done the way you would have done it yourself and think long and hard about whether a criticism is really justified before you voice it.

I don’t claim always to get this right: if you are a control freak at work it is difficult to shed the habit at home and it’s also difficult to rein in the barristerial habit of arguing the other side into submission, even when the other side is your 12 year old. But I do strive consciously for balance, over time. For example, some years ago, after a peculiarly difficult year when I was very heavily dependent on my husband to take the lead in managing our three young children whilst I dealt with a series of stressful and lengthy cases, culminating in a 6 week trial when my youngest was 5 months old, I realised he was due some payback for having put his own professional development on hold and agreed he should take up a year-long overseas fellowship, which was a once in a lifetime opportunity for someone in his discipline. We moved the family abroad for that year, I radically reduced my caseload and commuted to London on the relatively rare occasions when a face to face meeting or hearing was necessary. It was tough building up my practice again after I got back, but survivable, and three years later I was able to take silk.

When I joined my chambers, my then Head of Chambers advised me (it was his standard speech to new tenants) that my first marriage would fail, but not to worry, because my second marriage would be a great success. There was a certain amount of empirical evidence to support his view, looking around the senior echelons of the commercial Bar at the time. I could not buy in to the idea that one’s marriage should be regarded as inevitable collateral damage on the way to glittering professional prizes.

That takes me to my final point, which is that you need to define success in your own terms. If you are only doing what you are doing, in work terms, because you are still living out someone else’s vision of what constitutes a successful career, it’s time to stop and get your own life. If you are trying to combine work and raising a family, your version of parenting may differ from that of the full time Tiger mother you encounter in the school playground. Be kind to yourself. Something has to give. Your personal definition of success may be more challenging than that of some of the people you are competing with, precisely because you see it as a multi-dimensional thing. Many women, I suggest, would not dream of seeing themselves as successful if they had climbed to the top of the greasy pole professionally, at the price of a dysfunctional marriage or family life, or sacrificing along the way all the other interests that define them as a human being.

I am not saying this is unique to women. The late, great, Tom Bingham, who was a family friend as well as a mentor in the law, was for me a shining model of a man for whom a strong family life, friendships, and active participation in his community were as central to his being as his tremendous professional achievements. No doubt it also helped that he was married to someone whose personal definition of success did not, as it happens, include competing with him for the title of Lord Chief Justice. Nonetheless it is important to end by reminding ourselves that life-work balance, as such, is not a female issue, even if perhaps it is true that more women feel conflicted more of the time about whether they are getting it right. Last time I looked, most of my male colleagues in chambers were married with kids.