Diversification and Deregulation

It’s a really tough time for barristers at the moment, perhaps the worst ever time, but there is some hope for optimism, if we can deregulate and move with the times.

I’ve never known a time when the Government thought it was a good idea to increase Legal Aid, and pay barristers more for representing people in the criminal courts. Successive governments have slashed public funding again and again. There is no doubt those of us who still undertake some legally aided work are getting paid less than we were years ago, and not just in real terms. Actual money.

The answer is simple - you need to diversify, build on your expertise, and offer people a service that is better, faster, perhaps cheaper than your competitors. It depends on the areas of law you diversify into, but those competitors are likely to be solicitors, rather than other, self-employed barristers.

If like me you’ve found clients appreciate your abilities in civil work, negotiations and drafting, then you’re halfway there. The difficulty is getting the message out there that barristers are cheaper than solicitors. There, I said it. We don’t employ loads of staff, don’t bill in up to 10 minute blocks for ‘phone calls, and don’t spend hundreds of thousands of pounds sponsoring large sporting events. We are however, highly accessible, flexible, and capable of dealing with a wide variety of subjects. We could do so much more.

Where solicitors beat us is in litigation. Currently the Bar Standards Board prohibits barristers from engaging in litigation. The definition of “litigation” is not always clear, and isn’t properly defined. Instead we are told what we can’t do. Let’s say a small business comes to me, and wishes to take an action against someone for, say, infringing copyright on one of their media products. They can instruct me directly, without the need for a solicitor.

I can then enter into negotiations with the other side on their behalf. That doesn’t count as “litigation”. However, if these negotiations don’t succeed, we will need to progress to court action. That’s where my hands are tied. I’ll agree a fee to draft all the pleadings in the case. I can assist with drafting witness statements. I can represent my client at the hearing. Usually I’ll quote a fee for each aspect of this. The client pays the fee up front, and the work is done. I incidentally, only get the fee once I’ve completed the work - it stays in another account until then. No scary bills to follow.

So I’ve done all the written work. What I can’t do, is post those pleadings to the court, or serve documents on the other side. Neither can I hold client money on account. I can’t write a letter saying I am my client’s legal representative, and setting out their position before action is taken.

This has to change. The BSB talks about changing it, but until they do, I am forced to tell my clients that they have to post the documents I’ve drafted, because I’m not allowed to. There are potential ways around this, such as owning a legal entity that can act as a third party to serve documents, but it’s not simple, and doesn’t look terribly impressive to the client.

Barristers aren’t asking for much, but until we have a level playing field, we don’t have all the equipment needed to play the game. Let us litigate, then we can show just how good we really are.