Entity regulation: some positives for a more corporate Bar?

Baroness Ruth Deech signalled recently a more sanguine than usual view on entity regulation. Suggesting the Bar should look more favourably than it has appeared to hitherto on ABSs, as long as they concentrate on the Bar’s core area: advocacy. This is how the Law Society Gazette reports the story:

“We do not want barristers to melt away from the Inns by joining solicitor-regulated entities because there is no alternative if they wish to change their business practices and become more corporate,” said Deech.

At the same time, she said there is no point in the BSB offering to regulate, in the same way as the Solicitors’ Regulation Authority, entities that are identical in their composition to those that are naturally under the authority of the SRA.

Rather than either rejecting entity regulation altogether or going to the other extreme of regulating all legal entities, Deech suggested a middle ground in which the BSB regulated advocacy-focused entities.

Deech acknowledges there are difficulties with the such an approach, but it seems to me an eminently sensible strategy. The Bar has a core and clear niche and it should build around it in seeking a place at the ABS table. Whether that niche is strong enough to survive against more multi-disciplinary models is debatable, but it is an approach which has at least some prospects of success.

There are other reasons, beyond survival, for the Bar to re-consider the positive sides to such developments. One such reason is diversity. I was reminded of this by comments on my previous post on the latest Bar Council diversity initiative:

There are issues beyond recruitment for female barristers as well – the (sometimes) complete lack of maternity provision and (always) total disinterest of the Bar Council in providing support for young female barristers giving birth makes it economically untenable for some barristers to return to work after having children. And while the rest of the country has at least some degree of anti-discrimination provision, I personally know of two close friends who are (or were) barristers and who were called upon to convince recruiters at their chambers in interviews that they had no plans to have children at all when being interviewed for pupillage or tenancy. I know of several others who were unable to keep working when pregnant, with clerks who ceased to funnel work to them as soon as their pregnancy was revealed resulting in a year or more with little or no work, while they only had a couple of months off from chambers rent. I get that barristers are self-employed and that chambers are self-governing (and that some are far behind the equality curve) but surely the Bar Council should be doing more? The problem seems to be that it represents, in practice, both individual barristers and their chambers, and can’t mediate between the two.

The issue for diversifying the Bar is not just at entry level, but also for the rate of attrition from the profession for those from under-represented groups, eg women and those of BME identities. Certainly the number of women at the self-employed Bar as a whole (31.5%) is much smaller than the entry level figures (44% for the self-employed and employed Bar together). So the evidence backs up what experience tells me – that the Bar loses many more women from practice than men. This indicates a structural problem for the profession which needs to be addressed.

In my view, they are right and part of the problem is the self-employed status of Barristers and the peculiar ‘now you see us now you don’t’ organisational status of chambers. Entity-based practices of employed Barristers (and others) might mitigate some of these problems. There is evidence in the Bar Standard Board’s welcome publication of a pilot annual statistical report (the Barometer) which might be said to support this case. There are higher proportions of women barristers at the employed bar (46%) than at the self-employed Bar (32%). There are a variety of reasons why the figures might be different, but an ability to respond supportively and flexibly to maternity is likely, I surmise, to be one. I’m not saying that diversity should be the driving force behind any discussion of entity regulation at the Bar, but it might be an added bonus should the BSB take the difficult steps down road ABS.

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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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