Has the Bar shot itself in the foot?

The Chairman of the Bar has spoken eloquently of the need to restrain the number of students seduced onto the Bar Professional Training Course.  He has received many plaudits for speaking out, but I believe he may have shot himself in the foot. Before I explain why, let me quote from the text of his speech at length.

Each year, about 1,800 law students undertake the Bar exams and each year competition for pupillages intensifies as last year’s unsuccessful applicants vie for an ever decreasing number of pupillages with the current year’s output of newly called barristers. Over 4,000 applicants are now routinely competing for about 460 places. On one view, this is extremely good news for the Bar because the quality of intake in pupillages is quite extraordinarily high. The genetic makeup of our young practitioners is alpha class, but to my mind the statistics reveal both a moral and an economic problem which we have neither grappled with, nor properly understood.

Morally, I have real qualms about a system of education which encourages universities to educate more and more law students, because a law student can be generated at virtually zero marginal cost. These students leave university with substantial debts, often exceeding £30,000. They then invest further in professional training only to find that the door into the profession is very small and the waiting room massively overcrowded.

It is true that some students take the exams knowing that the chance of finding a place may be remote and/or that the qualification will be usable elsewhere, but it is clear to me from my many discussions with students, that many are seduced into a long, tortuous and expensive qualification processes where there is no realistic prospect of them ever being absorbed into the profession. With student debt on the rise and likely to rise further if the Government lifts the lid on university fees, surely we have a moral responsibility not to encourage those students who, on any realistic view, have no prospect of ever succeeding?

Why then, might I suggest that he has shot himself and his colleagues in the foot?

It is not that he has got some of his facts wrong, even though I cannot think of any approach to either law degrees or the BPTC where any law student is educated at or close to zero marginal cost. This is a remark which shows how properly he has not understood the problem which he admits not properly understanding, but that is not the point I want to dwell on today. My concern is in the admission that, “the intake in pupillages is quite extraordinarily high”. A strange thing to have concerns about, one might reasonably think, but it seems to me it contains an implicit admission of something very important. The number of pupillages excludes from the Bar candidates who are of sufficient quality to practice at the Bar. That is it excludes those who are (simply) good enough and (more importantly) those who are ‘very good’ but not ‘extraordinary’. Unless it can be argued that it is necessary in the public interest that the Bar only admit those of quite extraordinary talent, the Chairman of the Bar has admitted, I would argue, that pupillage constitutes an unreasonable bar on fair competition. From the public interest perspective, the Bar should admit more pupils (and face the reduction in the earnings that will ensue). Could they do so?

One approach would be to do away with pupillage. I would be deeply uncomfortable with such an approach: I believe we do need on the job training for would be lawyers. There is more of an argument in favour of abandoning pupillage where the profession is (broadly) referral only but that is not a position which will not hold much longer. Another approach was suggested to me last night. Chambers supporting one pupillage at (say) £50,000 could quite easily support two pupillages at (say) £25,000. I put to my dinner companion that Chambers needed to compete with City firms for those students and so needed to offer high sums. He thought not: students who want to be barristers, he thought, were only interested in becoming barristers and would take a pupillage at £25,000 over a training contract at twice that. I had some doubts about that but the BPTC numbers and Mr Green’s comment suggest he is right. Where the amount spent on pupillages cannot be subdivided in this way, it could be argued, the profession should dig more deeply into its pockets if it is to protect its monopoly.  Rather than trying to shrink the size of the waiting room, perhaps the Bar needs to think seriously about increasing the size of the door.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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5 Responses to Has the Bar shot itself in the foot?

  1. Steve Jones says:

    “Morally, I have real qualms about a system of education which encourages universities to educate more and more law students … only to find that the door into the profession is very small and the waiting room massively overcrowded.”

    To which one might add any number of other degree courses which students have been encouraged to believe assist them in getting jobs. Of course it’s true in the sense that such qualifications are often now a pre-req, but having a large number of graduates in any particular discipline will not guarantee there will be an increase in the supply of suitable jobs.

  2. Unconvinced says:

    Indeed if all pupillages were £50,000 then it would would no trouble at all to double or even treble the places available by reducing those awards to a more modest level, but therein lies the flaw in your proposition. While almost without question those wanting to become barristers are only interested in becoming barristers, and so the payment levels of solicitor training contracts are irrelevant, the number of 50k pupillages are negligible. The vast majority of pupillages, even in London, are funded to the Bar Council minimum level of £10,000 or marginally more. Those that aren’t rarely exceed £25,000. Splitting these low level awards is impractical and unduly hard on pupils who are already saddled with vast debt in most cases.

    The answer is that the level public funding is paid at needs to be addressed realistically, and more to the point this obsession with blurring the distinction between the two sides of the profession must be arrested. Giving solicitors higher rights was a mistake, HCAs are invariably poor advocates, and most barristers are not interested in direct access. The regulatory bodies need to cease being gripped with the idea of change for the sake of change. The referral system of the Bar, and the public access of solicitors worked perfectly well for hundreds of years. We do not need an American ‘all access’ legal profession.

    Jack of all trades is master of none.

  3. Richard Moorhead says:

    Thanks ‘Unconvinced’. You’re right that splitting £50k or £30k or lower would only get us so far. And I take the point about public funding. Data on bar earnings is very poor, so we have no real way of understanding what chambers could really ‘afford’ to open up the number of pupillages. It strikes me there must always be a very interesting tension within chambers: fund another pupillage and have another tenant in a year’s time competing for work, or save the money and keep more for yourself. It’s more complicated than that of course. There’s a degree of mutuality in getting new blood (and especially good blood) in, but the tension between self-interest and public-interest is an interesting signal of the problem with a pupillage-type system.

  4. Anya says:

    Richard,

    I think your post and comment are very wrong indeed.

    First, there is the obvious point raised by a previous commenter that 50k pupillage awards are few and far between. The great majority of pupillage awards are less than 25k, such that splitting would mean pupils living on less than the mandated minimum award of 12.5k, which is in any case not enough to live on, especially in London, never mind begin to pay back student debts.

    Secondly, I really don’t see how you can deduce from the fact that people applying to the Bar are willing to accept the money available now would be happy with 50% of that money, not just at the pupillage stage (which might be doable, but if only 50% of pupils went on to ultimately get tenancy it would hardly be an improvement on the current situation) but more importantly for the rest of their careers, which is what you are proposing. The Bar is certainly a very attractive career and I have always pursued it without caring that perhaps in the initial years I might make less than I would make in a solicitors’ firm. But making less than half of what I might make in a solicitors’ firm is clearly another matter entirely. It’s also worth noting that a barrister needs to make significantly more than a solicitor to end up with the same amount of take-home income. There’s c. 20% to pay in rent/clerks’ fees, pension contributions, health insurance, travel costs and all the other “perks” provided by firms that need to be paid for by barristers. For those of us who are female, we need to factor into our earnings the fact that we will not have paid maternity leave, and indeed will in many cases have to pay significant rent to chambers should we choose to absent ourselves for more than 6 months.

    I love my job but no way would I do it for half of what I earn. I could get a part-time job with no stress or responsibility whatsoever that would pay more than that. Many junior criminal barristers are in serious debt as it is. As for commercial barristers, many simply wouldn’t take on something that so fully takes over one’s life for half the money they are earning, bearing in mind that most could find more lucrative careers outside the Bar if they wished to.

    Perhaps even more fundamentally, I would be deeply unhappy as a part-time barrister. And that, after all, is what you are suggesting. All chambers want to grow insofar as possible, and to take on as many tenants as there is available work to do. Taking on new tenants only really affects the very junior members of chambers in terms of taking their work away, and their views are relatively or completely unimportant (depending on the chambers) when it comes to recruitment. It is the senior members of chambers, in consultation with the clerks, that will ultimately take a view on how many new tenants there is room for. Bearing in mind that the more members of chambers, the lower each member’s rent will be, there is certainly no reticence to taking people on when there is enough work. Accordingly, if twice the new tenants were to be taken on in every chambers every year, the work would simply have to be divided in two, providing each new tenant with enough work to keep them busy 2 or 3 days a week. There is only so much work to go around.

    As to Nicholas Green shooting himself in the foot – I don’t think he did so at all. It has never been denied that there are plenty perfectly good applicants who would make good barristers, if not brilliant ones, who don’t get pupillage. Everyone knows this. Given that nobody is saying that those who do get tenancy at the moment are unworthy of it, that doesn’t mean that something must be wrong, it simply means that it is a highly competitive profession. It’s like saying “Well, we have enough surgeons in England, but we have so many people who would be able to do the job and would really enjoy it, so let’s just double the number of surgeons, put them all on a 2.5 day week and halve their salaries.”

    In short, I disagree 🙂

    Anya

  5. Richard Moorhead says:

    Anya,

    Great post. Thanks very much. I don’t disagree that chambers should be free to pitch their level of quality at ‘super-excellent’ and only take on people that they have sufficient work for. If their clients are willing to pay for that level of quality then it is a win-win. But I think there is a real question over whether the profession doing that as a whole is in the public interest because they are restricting competition when they act on that basis. That pushes me towards asking the questions: is there a means other than pupillage of ensuring barristers are competent (assuming for the moment that pupillage does that)?

    All the best

    R

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