Grabiner is both right and wrong to resist the money question

Lord Grabiner’s cross-examination by the Treasury Select Committee provides an interesting opportunity to reflect on barristers, costs and the influence of money on lawyers.  Jesse Norman MPs cross-examination is a tussle about how the two gentlemen interpret a conversation about market manipulation which is worth watching if you like a bit of sport about social hierarchy and (dis)respect.  Lord Grabiner gets more than a little irritated, justifiably or not you can judge (at the end of the recording).

The cross examination begins (oddly to me) on the subject of Lord Grabiner’s fees. Andrew Tyrie questions him on the size of his fee, and in his own defence Lord Grabiner says (according to the ft and having viewed the early stages of the video): he doesn’t know the size of his fee; that they got a serious discount; and that the tax payer got great value for money.

There is probably a significant element of truth in Lord Grabiner’s characterisation of disinterest but it is worth emphasising:

a) discounts for blue chip clients of the Bank of England sort are granted for mixed reasons – such instructions are signals of eminence that are helpful to the status (and rewards) of lawyers beyond the immediate instructions;

b) it’s a little too convenient that the only thing Lord Grabiner knows about his fee is that there was a ‘serious discount’ and a “cheap deal”, “very atttractive” from the employers perspective. “Take my word for it,” he says and Andrew Tyrie says words to the effect of I don’t think we will we’ll go and have a look.  Lord Grabiner also says (I think), “Barristers don’t get into the grubby world of negotiating their fees… since I have the best clerk in the Temple, I let him get on with it.”

We can see in this exchange something of why it might be convenient to barristers to claim they don’t negotiate fees. Grabiner cannot really say, I know nothing and I only know something which helps me and wax lyrical on how marvellous this is.  It’s a position which invites proper scepticism.

There are two main benefits in having fees negotiated at arms length. One is that the clerks will do a better job of getting higher fees for their barrister, especially when barristers are decent sorts (as I am convincingly assured Lord Grabiner most definitely is).  I’d rather like it if someone who knew markets better than me negotiated for me.

The second is a more public interest benefit.  The practice of law is increasingly valued, measured and publicised in terms of financial success.  Framing professional success or professional status in monetary terms may very well influence professional judgment and do so in harmful ways.  Barristers seem to do this less than solicitors.  Earnings are influential on decisions within chambers, but still the sense is that money talks less strongly at the Bar. That’s a good thing as far as I am concerned – but money still talks. The barristerial conceit about being above the grubby fray is in this sense a good one, as long as the extent to which they portray themselves as above the fray is not exaggerated. A little humility and self-awareness would go a long way to cement a strength rather than undermine it with hyperbole.

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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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2 Responses to Grabiner is both right and wrong to resist the money question

  1. Thanks Richard, for an enjoyable analysis of an interesting situation.

    Although not the main thrust of your piece, I would like to correct you (if I may) on the role of the clerk. I don’t think it’s accurate to say the clerk’s job is to get higher fees for the barrister. The primary role of a clerk – at least one doing his or her job properly – is to generate and safeguard sustained business for the barrister and chambers. To this end, brokering the RIGHT fee – one that is fair to the barrister and represents value to the client – is critical. Simply pushing for the highest fees indiscriminately is a surefire way to lose business. Indeed, in instances where the barrister is pushing for the highest fee possible it is the clerk’s role to challenge them and protect them from doing commercial harm to themselves.

    I suspect the “best clerk in the Temple” (at the time of writing …) was doing his job properly.

    • Richard Moorhead says:

      I’ll take this very sensible comment and finesse it if I may: fair to the client and value to the client but within the boundaries of that a fee that earns the most for the chambers. And sometimes of course some (the bad ones) will over-emphasise fairness to the barrister. All businesses with any sense will say they strike the fairness/value balance of course, including barristers and our friends in Big Law 🙂

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