What future is there for the legal profession in England and Wales? Spend a few hours at the annual barristers’ conference and you will come away profoundly depressed. But read the latest thoughts of the profession’s leading futurologist and you may well be inspired.
To most people, a barrister is someone who stands up in court and prosecutes or defends people accused of criminal offences. Although the criminal bar is a relatively small part of the profession, it’s probably suffering the most. Cuts in legal aid have greatly increased the attractiveness of a seat on the circuit bench, apparently known as the “purple lifeboat” after the colour of the judges’ robes.
Criminal barristers for whom this is not an option are increasingly required to pay “referral fees” to the solicitors who brief them. As both the parties must surely know, paying a fee that improperly influences the choice of advocate may amount to an offence under the Bribery Act. Of course, clients may not realise why they are being represented by inadequate lawyers. But Michael Turner QC, chairman of the Criminal Bar Association, said the government was well aware that it had “enshrined a system where bribery for briefs is commonplace”.
In heavy or demanding criminal cases, it is still possible for a defendant to be represented by two advocates-traditionally, a Queen’s Counsel and a junior barrister. The junior used to prepare the case, interrogate some of the less contentious witnesses and take over at a moment’s notice if the QC had to be called away.
The problem nowadays is that solicitors’ firms increasingly insist on one of their own in-house advocates acting as junior counsel. Those lawyers may not be up to cross-examining witnesses in a rape or murder case. But Sir Anthony Hooper, a former appeal judge, put forward a radical solution in his speech to the bar conference.
If the problem can be solved by adjourning the case for a few minutes, all that may be necessary is to order the side that was inadequately represented to pay for the delay. If not, he continued, the trial should be aborted and the party responsible should pay all the costs. “What the judge should not do,” said Hooper, “is to continue the trial, leaving the remedy for defence incompetence to the Court of Appeal and leaving no judicial remedy for prosecution incompetence.”
More broadly, barristers were told that they must adapt in order to survive. “Now is the time to change: not to change our values, or the quality of what we do, but to change from being reactive to what is going on around us . . . and to take charge of our future,” said Michael Todd QC, chairman of the Bar Council. Much has been done already, with barristers increasingly accepting work directly from individuals and small businesses, cutting out the solicitor’s traditional role as middleman. Barristers have never been allowed to hold clients’ money-an essential part of many business deals-though a way round that restriction will soon be provided by an escrow account at Barclays Bank, to be called BarCo.
But surely the more that barristers take on the routine work previously done by solicitors, the more they will lose the elite status-championed at the conference by Lady Justice Rafferty-that sets them apart?
Not so, Todd told me. “I still see myself as a barrister, with a primary duty to the court and with an independence from the client that is in the client’s best interests.”
But so do solicitors. And so, perhaps, do the so-called alternative business structures that are now being licensed to provide legal services. These range from organisations such as the Co-op, offering consumers the “Tesco law” service that Tesco was never interested in offering-to business lawyers such as Riverview Law, which have replaced the billable hour and city-centre offices with fixed prices and remote working.
It’s changes such as these that have kept Professor Richard Susskind in business. For the past 30 years, he has been predicting how technology will transform the way that lawyers work. He now has the satisfaction of seeing himself proved right.
Susskind’s presentations often include a picture of a gleaming new power-drill. The sales team are asked if this is what they will be selling. It is not. The next slide shows a neatly-drilled hole. “This is what our customers want,” they are told. It’s the outcome that matters, not the way it is delivered.
In January, Susskind publishes his latest book, Tomorrow’s Lawyers (OUP, £9.99). Aimed at students, it predicts disappointment for those who hoped to have a career akin to that enjoyed by lawyers of their parents’ generation. But “for those who seek new opportunities and wish to participate in bringing about the advances I predict in this book, there has never been a more exciting time”. I hope he’s right.