In the Media

The coal fires are long gone ? we are competitive small businesses

PUBLISHED December 22, 2011

Remember Bar Wars? When the two halves of the profession were at each other?s throats over turfs? They?re back. Michael Todd, QC, insists that this is not about the F-word ? fusion. But what is clear is that the last hallmarks of the two branches, barristers and solicitors, are slowly being removed.

Todd is looking at the feasibility of a service that would enable barristers, in effect, to handle clients? money from arm?s length. Solicitors have always been the ones to deal with clients and fees but Todd would like chambers, or any mixed partnership or business model regulated under the Legal Services Act 2007, able to have an escrow account facility for client money.

Barristers, he says, must adapt their business models to meet modern-day needs. ?There is considerable interest by a number of potential providers of this service.? At the same time, there are plans to allow the public to brief barristers directly, not through solicitors.

?We want to be able to offer the full range of direct access work,? Todd says. ?This is not a profession coming together with a view to fusion. It is a recognition from both sides that we provide complementary services, that there are services we can provide, quickly and cost-effectively. People can go to solicitors for general advice but if specialist advice is needed, they can come to us.?

The 1980s turf wars, triggered by the reforms of the Conservative Lord Chancellor, Lord Mackay of Clashfern, dismantled some of the profession?s restrictive practices. Solicitors started to do advocacy in the higher courts, they lost their virtual conveyancing monopoly and barristers allowed fellow professionals to brief them directly and not go through a solicitor.

Now, with the impetus of the Legal Services Act that allows lawyers to set up with other people in business, the last of the turf rules are being dismantled. A consultation paper from the Bar Standards Board is looking at whether barristers should be able to accept instructions from legally aided clients and at lifting the ban on barristers of under three years? qualification dealing with clients direct.

Such moves do not always go down well with solicitors, Todd admits. ?They are never pleased when we modernise and improve the way we provide our services. But we have to do it. The market requires it, just as solicitors now provide advocacy services.?

It is just the latest upheaval he has witnessed since starting out 35 years ago. Next month, Todd, 58, takes over as chairman of the 15,000-strong Bar in England and Wales after a year as vice-chairman. ?Then, it really was quite old-fashioned. Papers came down in pink tape and people would wait upon us as the ones who would provide opinions, perhaps within three months. Now it?s the next day. A lot of work comes from foreign law firms and people want to be able to come direct.?

Yet he can be a little more optimistic than his recent predecessors. Ministers have just delayed the timing of controversial plans for competitive tendering on legal aid. ?This is very significant because it enables a chance for the changes to be given proper and due consideration. These are monumental changes. There are times when there should not be soundbites but proper discussion.? But the plans are only postponed: the Bar must still make its case.

Todd, a leading Chancery practitioner called in 1977 with Erskine Chambers, sees the Bar as a business. It is many years since a barrister?s clerk had to make up the coal fires in the rooms of members of chambers. Clerks, managers and chief executives now ?run our businesses ? which is what we are: small and medium-sized businesses?. As a small but significant gesture, he is proposing that clerks should be able to affiliate to the Bar Council.

Despite his field of work, Todd is not a stereotypical fat cat. His father was a machine tool engineer, his mother a baker?s daughter. He went to the local grammar school in Kenilworth, Warwickshire, but left at 16 after a rugby injury. He started training to be a chartered accountant but disliked the work so returned to school for A levels, then read law and economics at Keele University. He fancied the Bar, he says, because ?of the way it worked as a referral profession, as well as being a self-employed practitioner?.

He specialises in company law and corporate finance, appearing in many courts such as Bermuda, the Cayman Islands, and the British Virgin Islands as well as in the UK. When home, he enjoys riding. He and his wife keep horses.

But the impact of current training costs on the profession?s diversity, and of cuts on access to law, concern him. ?If every barrister gave £20 each a year, the costs of the Bar Pro Bono Unit [which funds cases] would be covered,? he says. ?What greater statement could this profession make than to say that it will do this, in the public interest??

He also wants the profession to target resources on school children from all backgrounds, so that it is seen as ?accessible?. People sneer at the Bar and doubt its sincerity on this topic, he says. ?But we can?t afford to be deflected. We need to invest in the future. The Inns of Court must also co-ordinate their initiatives to avoid duplication and waste.?

Arguably, though, his and the Bar?s biggest problem is image. Todd accepts that Bar, whose livelihood is advocacy,has not always done the best job in promoting itself with the media, Parliament and Whitehall. ?We are a profession of advocates, after all. But people don?t always appreciate the importance of our role as advocates, in assisting with the due administration of justice because of the standards we employ and values we have.? The yardstick, he insists, is relevance. ?That is the message we need to
put across.?

Working with company contracts, mergers and acquisitions, Todd is not an old-style circuiteer lamenting the loss of legal aid. But he does believe that proposed cuts will prove more costly in the long term. Yet barristers ?have no entitlement to work?, he adds. ?We must compete for it.?

Yet the Bar is ?underestimated? because ?most people don?t need to call on our services. Most people are not charged with a serious criminal offence, for instance. We have to communicate better the services we provide and how they are essential to a proper criminal and civil justice system. That is what the public is entitled to.?