In the Media

Shifting sands

PUBLISHED March 31, 2006

Under pressure from low fees, parts of the junior bar seem headed for extinction ? but don?t nail down the coffin lid just yet, writes Catherine Baksi

Adecade ago, the present chairman of the Young Barristers Committee (YBC) heard the bar described as a flower ? pretty at the top, but dead at the bottom.

The demise of the junior bar has been heralded for decades, and at first blush the flower does appear to be wilting. A recent exit poll indicated that poor pay, uncertainty over future earnings and lack of support from clerks were among the main factors driving people out of the profession (see [2006] Gazette, 9 February, 4).

The plight of young criminal barristers has been much in the news owing to the bar?s discontent over fees in publicly funded work. The bar claims that fees have remained unchanged for eight years, resulting in pay cuts of 23% and prompting an attempt at industrial-style action by some. Indeed, a recent survey for What Car ? magazine showed that the average car mechanic is often paid more per hour than a junior criminal law barrister. But as practitioners wait for Lord Carter to put figures in the boxes to determine the future of the publicly funded bar, what is it like at the coalface?

Fiona Jackson, a criminal law specialist barrister of eight years? call at Furnival Chambers in London and vice-chairwoman of the YBC, describes a typical week for a junior criminal barrister: ?Monday ? arrive at court to prosecute a trial, but a witness fails to turn up, so the trial is adjourned and you get ?46.50. Tuesday ? travel to Birmingham for a mention and plea and case management hearing (PCMH), again ?46.50 plus a PCMH fee; so you?re actually out of pocket because you?ve had to pay to get there. Wednesday ? your defence trial at Snaresbrook pleads [guilty], so you have nothing to do on Thursday. Then Friday ? two mentions at Reading.?

She emphasises that if your case goes out, you cannot expect a crop of work to replace it. ?People are leaving because they can?t cover their costs,? says Ms Jackson, which is not surprising looking at the figures. The Bar Council estimates criminal barristers earn between ?7,000 and ?12,000 in their first year, but others suggest that many earn so little they do not even have to pay tax.

One former barrister says she left the bar because she found it financially untenable. ?I?d taken out bank loans to pay for bar school and had to make repayments in the first years of practice at the same time as paying chambers? rent, clerks? fees and travel expenses,? she says. ?I had no support from the clerks, I was sent to court for very little money and fees were not chased up for fear of jeopardising the practices of senior members. In the end, I just couldn?t afford to live on the money.?

Alan Blake, a criminal barrister at 4 King?s Bench Walk, had a different experience ? and gets fed up with the ?whinging? he hears from others. ?At the end of the day, this job is very rewarding and enjoyable. If you compare yourself to corporate solicitors, which barristers frequently do, the fees are not great, but if you compare yourself to teachers or nurses, then it?s a comfortable amount.?

Mr Blake left the bar after three years for a more nine-to-five job at the Home Office, but missed the advocacy so much that he returned to practice. He says it was not money that had prompted his departure, more lifestyle. His early years were similar to most criminal juniors, he suggests ? preparing a new trial every night and travelling a long way.

?I was fairly newly married, and got fed up not being able to plan things and having to cancel arrangements at the last minute,? he says. But when he found himself wandering into Middlesex Guildhall Crown Court just to watch a trial, he realised it was time to return to the bar.

He says: ?Most people are aware of the amount they can expect to earn when they choose this job, and to that extent, if you want to earn a lot of money, then perhaps you shouldn?t come to the criminal bar.?

Tom Little practises criminal law at Gough Square in London, and chairs the YBC. He says: ?The junior criminal bar offers a hugely challenging and satisfying career, which gives you far more responsibility than most comparable professions and gives huge job satisfaction.? But he warns: ?We do face great challenges ? the two main issues being fees and regulation.?

From talking to barristers on the circuits, he finds a number of juniors are leaving, but many are waiting to see the outcome of the Carter Review on legal aid procurement. ?If, after that, fees aren?t sustainable, I have no doubt many people will leave and take the salary and pension packages offered by the employed bar.?

He notes the Crown Prosecution Service (CPS), the Government Legal Service (GLS) and the Revenue and Customs Prosecution Office appear to be seeking to recruit dissatisfied junior barristers, and adds that the CPS?s aim to increase its number of in-house advocates from other sources presents a further challenge. ?The bar has no complaints about competition, but many inexperienced CPS higher court advocates are being introduced into courts and they end up doing the work that the junior independent bar has traditionally done.

?There is also the potential for regulation to hugely increase costs ? the White Paper on the Legal Services Bill states the costs of complaints should be borne by the barristers, which may disproportionately affect juniors.?

On a positive note, Ms Jackson says the government has introduced so many legislative initiatives that people are able to develop new areas of specialisation, such as confiscation, asset forfeiture, ASBOs and prison law, to enhance their practices.

She does not predict the end of the junior criminal bar within the short or medium term, but a more streamlined profession, with practitioners focusing on niche areas as well as being general criminal specialists.

Pressures at the family bar are similar, but the situation is less acute. According to Fiona Shannon, a barrister of five years? call at 1 King?s Bench Walk in London, the main issue is again funding, as family law barristers also await the final outcome of the Carter Review.

?There is a feeling of being under attack from government. Our fees aren?t generous and it?s hard to look forward and have confidence that in ten years? time there I will be able to do publicly funded work,? she says. ?From a private law perspective it?s hard to say how things will go ? there are concerns that the government is trying to take cases out of the court and use alternative dispute resolution methods.? But Ms Shannon sees this as the right approach, and an opportunity for barristers to become mediators.

The mood, she says, is not optimistic, but less negative than at the criminal bar because of the option to do more privately funded work. ?You can make a good living at the family bar, but it is increasingly hard to do so if you only do publicly funded work.?

The wider civil bar faces problems too. Mr Little says juniors, particularly those doing personal injury and employment work, are struggling because conditional fee agreements mean they risk not being able to recover money for work done if they lose a case, or having to wait months to the conclusion of a case before being paid.

In contrast, juniors at the commercial bar, who start on around ?35,000 a year, are experiencing a different career. Catherine Gibaud, a commercial barrister at London set 3 Verulam Buildings, says juniors are very busy and have growing practices.

Ben Jaffey, a barrister at Blackstone chambers in Lo
ndon, agrees ? but he differentiates between two sections. At the traditional end of large high-value cases, he says, the junior bar is less busy. He attributes this to the Woolf reforms, which reduced the number of new claims by 80%, and the fact that the larger solicitors? firms are now doing more of the day-to-day work in-house.

However, he says the more modern specialist areas, such as sports, media, civil fraud and financial services regulation, are thriving ? and he sees no threat from barristers moving to join law firms. ?If you want to be a commercial advocate. there is still no alternative to the bar,? he says.

Across the board, support from chambers was seen as essential in the early years, and those without it inevitably struggled. Amber Marks, former barrister who now works in the criminal appeals division of the Court of Appeal, says: ?You can?t survive at the criminal bar unless you?re in a good set, where you?re supported to build up your practice. In the past you could build up your own practice over the years, but this is not possible now as you can?t support yourself financially for the five or so years this would take.?

Ms Jackson agrees: ?As competition increases, the importance of being in a good set will be more important than ever.?

Ms Gibaud, who has two young children, says support from chambers was vital in enabling her to combine a career and family. Her chambers, 3 Verulam Buildings, has a mentoring system that pairs new tenants with more senior practitioners to support and advise when necessary. In addition, it has a graded scale of rent, so juniors pay less.

Mr Jaffey adds: ?It?s extremely difficult to develop a good practice at the commercial bar unless you are at a good set, because barristers are increasingly selling themselves as being part of a brand.?

Many barristers are moving across to the employed bar, according to the Bar Council?s recent exit survey ? mainly lured by the attractive salary and associated benefits. But is the grass really greener on that side of the bar? It seems so. Helen Mahy, co-chairwoman of the Employed Barristers Committee and general counsel at National Grid, says the employed bar offers considerable advantages, particularly to juniors and those with families.

?The work is challenging, and you have a regular salary, paid holidays, sick pay and maternity leave, a pension, more regular hours, and the possibility of flexible working,? she says. She hopes that barristers who move to the employed bar are doing so as a positive choice rather than through compulsion.

However, Ms Mahy says the employed bar does have an image problem ? there is a perception that those in employed practice are less able than their colleagues in chambers.

Employed barrister Fiona Butler heads the civil advocacy unit at Nottingham law firm Browne Jacobson. The firm sponsored her during her pupillage in chambers in Nottingham, where she was offered a tenancy, but turned it down to return to employed practice.

?I had got used to having a regular salary and needed the greater financial security of being employed, as I had a mortgage and was trying to clear my debts,? she says.

Ms Butler says there was no trade-off in terms of doing less advocacy ? she is in court three or four times a week, and does not have to deal with the poor organisation she experienced in private practice. The only difficulty she finds is that having no one above her, she sometimes feels on her own, which can be daunting.

Stephen Smith qualified in 2005 after completing a pupillage with the GLS. Now a prosecutor at the Department for the Environment, Food and Rural Affairs, he says: ?You get to work on high-profile issues of public interest from early on, plus you get a regular salary, generous leave allowance and the opportunity to work flexibly.? The downside? ?You?re not your own boss, you?re a small cog in a big machine and ultimately you are a civil servant.?

How does Stephen Hockman, the chairman of the Bar Council, sum up the situation facing his junior cohorts? ?Morale at the junior bar is, in general, strong,? he says. ?It?s certainly strong in the privately funded sector, where those in good sets have a bright future.?

Mr Hockman acknowledges the picture is different on the publicly funded side, but remains hopeful that Lord Carter will come up with the right figures to ensure it remains an attractive proposition.

The junior bar is a broad church, thriving in some quarters and facing serious challenges in others. But, as Mark Twain might say, it seems the rumours of its death have been greatly exaggerated.