The Lawyer is running an interesting story about the potential merger of two civil sets of chambers. It may well be that as the liberalisation of legal services continues apace and the legal aid and civil funding reforms affect a miserable contraction we will see a lot more of this sort of thing. It raises an interesting question, quite aside from the debate about whether barristers should more fulsomely embrace alternative business structures. That question is, do barristers practice independently or within organisations? Put more controversially, and with deliberate provocation, are barristers really as independent as they profess?
The issue is more prosaically put in the context of referral fees. The Bar are generally incandescent about referral fees, and not entirely without justification. There are two reasons. One virtuous, the other less so. Firstly, referral fees do have the potential for malodorous influence on client ‘choice’ of lawyer. They are right to be concerned about this. The second is that, given their historic but eroding, position as a referral only profession, they are in a weaker position to compete for clients in the brave new world of competition that is upon us; so it is more in their interest than solicitors to kick up about referral fees. Virtue and self interest align their critique.
This leads me back to the reasons behind chambers mergers. What is it that larger, merged chambers of independent practitioners get that they do not have as smaller chambers? There may be (I suspect modest) economies of scale around things like library and accommodation costs; but it is the role of (a larger) chambers in the attraction and distribution of work that is – I assume – the real prize here. Often this is about reputational capital. Clients, even relatively sophisticated purchasers, struggle to assess the quality of lawyers, and so size and the reputation of stars or chambers generally acts as a proxy. Mrs So and So was a bloody marvel on the last case we instructed, but she’s not available; so lets see who else they’ve got. Clerks may be asked to recommend someone (and I’d be interested to know if experiences as a young practitioner of being recommended utter duds, occasionally, by clerks eager to keep work in-chambers is unique). Barristers pay chambers fees partly to cover costs and partly because the clerks (and the reputation of chambers) get them the work. Conceptually, part of this is a referral fee.
There are other signs that chambers operate organisationally not institutionally: discounting ‘low-level’ criminal brief fees for junior members to keep the more remunerative work rolling in for senior members and the oft-reported pressure to keep repeat clients happy with the tenor of advice being to others.
That is not to say that the chambers system is a bad, or corrupt one, or that more overt referral fee approaches are not worse; but it does mean that the Bar might have to think carefully about how it balances its organisational identities and its independence claims, as well as its ethical obligations (conflict of interest rules come to mind and greater use of direct access may mean the potential for clerks to over-sell the competencies of their colleagues is increased).