The Enterprising Barrister

Organisation, Culture and Changing Professionalism

Atalanta Goulandris

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509928774
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

What is it like working as a barrister in the 21st century? The independent Bar has transformed in the last 30 years into a commercialised, enterprising profession. Based on interviews with and observation of barristers and chambers' staff, this book identifies key changes that have taken place at the Bar and how these are reshaping and reformulating barristers' professionalism and working culture. This is the first empirical overview of the depth, scope and effects of multiple reforms that have been imposed on the profession. It explores how this once unified profession has fragmented, as the lived experiences of barristers in different practice areas have diverged. Highly specialised sets of chambers now operate like businesses, whilst others, who are dependent on legal aid funding, struggle to survive. This book offers a unique examination of different sites of change: how the chambers model has evolved, how entrepreneurial barristers market themselves, how aspirant law students prepare to enter the profession and how regulatory and procedural reforms have imposed managerial constraints on practitioners. The conclusion considers what the far-reaching changes mean for the prospects of the Bar in England and Wales.

1

The Enterprising Barrister

This book is an account of how self-employed barristers have adapted to the changes the independent Bar of England and Wales (the Bar) has undergone in the last 30 years. The externally imposed reforms have been significant, wide in range and, in some cases, deeply felt and have prompted a radical shift in how self-employed barristers (barristers) organise themselves, seek work, perceive and present their professional function. I argue that four key external changes and their consequences have triggered this shift: the Bar’s loss of monopoly on higher court audience rights; the imposition of independent regulation; the liberalising rules concerning organisational structure; and, finally, the withdrawal or reduction of public funding in many areas of practice. The focus of the book is not to review arguments for or against the reforms. Instead, it examines the dynamics and the consequences of the reform process from the perspective of different barristers and how they are negotiating a rapidly changing working landscape.

The qualities now needed to be a successful barrister have evolved. Legal qualifications, together with analytical and advocacy skills, are no longer enough. The contemporary barrister must be innovative, resourceful, self-promoting, commercially astute and accountable, attributes that contrast sharply with how traditional professionalism has been perceived both by practitioners and academics (Evetts 2011). This book advances the argument that a career at the Bar is now an enterprising undertaking, by which I mean, it is market and customer focused and shaped by managerial concerns. Barristers’ professional relationships within their organisational structures and with their clients have changed. The enterprise culture has seeped into many aspects of their working lives, as they are required to be more flexible, client-facing, competitive and efficient. Practitioners now sometimes bid for work, are often paid by results and have had to develop sophisticated marketing strategies to survive. A striking new, entrepreneurial rhetoric dominates their professional lives. All of the above are at odds with their traditional ideology and ways of working (Evetts 2015).

I.The Research

The Bar remains an under-researched profession. The last in-depth empirical overview of barristers’ organisational structures and professional culture was Morison and Leith’s (1992) comparative study of barristers in Great Britain, which pre-dated most of the reforms or was written before they had any significant effect. Richard Abel’s (2004a, 2004b) political analysis thoroughly investigated, via secondary sources, the Bar’s resistance to these changes before they were introduced and, more recently, Justine Rogers’ (2011, 2014; Pirie and Rogers 2013) account of pupillage yields rich data on early professional identity formation. Her research, carried out in 2007, charts the path of pupils in their year-long training period during some of the earlier changes explored in this book. In the last decade, the profession’s regulator, the Bar Standards Board (BSB) has initiated its own research agenda and in addition there is some research on specific aspects of or changes to the profession (eg, Harris and Piercy (1998) on early marketing; Flood and Whyte (2008) on direct access; Maclean and Eekelaar (2009) on the nature and impact of barristers’ advocacy in family cases; Mason and Vaughan (2017) on the experiences of LBGT+ practitioners; and Freer (2018) on attempts to increase the prospects of non-traditional entrants coming into the profession). Despite the valuable insights of this body of research, this study is the first analysis of the overall effects of the reforms on the Bar’s organisational, working and cultural life.

This book is derived from qualitative empirical data and analysis of other, extensive data sources. In-depth, face-to-face interviews were carried out with 63 participants. Most were barristers and the rest comprised barristers’ clerks, chambers staff, solicitors and others. The research was carried out during a 19-month period between March 2013 and September 2014. There were further follow-up interviews with a third of the participants during a seven-month period between October 2018 and April 2019. The sample is fully broken down in the Appendix, where it appears as a complete, anonymised list in the order in which the interviews took place. Each participant has been given an identifying code and is classified by gender, practice area and year of call for the barristers and experience for the others. In summary, of the 63 interview participants:

•A total of 51 were barristers, 20 of whom practised on circuit.

•They worked from 19 sets of chambers, across three of the six different circuits in England, in addition to those in London.

•All worked within a set of chambers, save one, who was a sole practitioner and another who had set up a Limited Liability Partnership (LLP), which employs other barristers and paralegals.

•From the barrister sample, 34 were men and 17 were women. A third of them were under 15 years’ call, the remainder being more experienced, 10 of whom were Queen’s Counsel (QC). Four were heads of their chambers.

•There was an even spread of practitioners doing criminal (13), general civil (13) and specialist civil work (14), slightly fewer family practitioners (9), one barrister who did a crime/family mix and one general common law practitioner who did both criminal and civil work.

•The rest of the participants were chambers staff (four senior and second clerks, one chambers director, two managers and one marketing consultant), two solicitors, an academic legal blogger and a Bar Council employee.

Interviews were transcribed onto time-coded software and then transposed onto MAXqda, compatible specialist software, which was used to code, manage and retrieve the data. Analysis was based on a grounded theory approach, whereby insights were explored and developed from themes that emerged during this process (Strauss and Corbin 2015). The sample size is relatively small, does not include barristers practising in Wales and can in no way be representative of all practitioners’ opinions or experiences. There were inevitably multiple personal perspectives or realities. However, enough common material or patterns emerged to form a picture of some of the effects of the reforms and the ways in which certain chambers and barristers have responded.

A wide selection of Ministry of Justice (MOJ) and policy documents, select committee and other government reports and Green Papers were used, as were Bar Council and BSB research and reports. Twitter, legal blogs and the trade press provided further access to a variety of relevant issues and developments. Analysis of official Bar statements or newsletters, mediated through some of the professional bodies, was also invaluable, revealing the rhetoric and discursive transformation of the Bar, which facilitated a wider understanding of the changes in the field beyond the immediate dataset.

II.Ethnographic (Re)Immersion

I practised at the Bar from 1985 to 1993 and was a tenant in a common law set of chambers based in the Temple, with an annexe on one of the circuits. My re-immersion 20 years later as a researcher, Rip van Winkle-like, was double-edged (Wilkinson and Kitzinger 2013). On the one hand, there was considerable familiarity, as I had previous knowledge and professional experience as a young practitioner. On the other, I was struck by how many things were different, some radically so. There were obvious advantages. I was able to access barristers more easily with the help of former colleagues, who were instrumental in facilitating introductions to participants of all ages and practice areas, who in turn led me to others. My insider (albeit out-of dater) status made communication with all the participants smooth. Many spoke to me as if I was one of them, even though I had made my position clear and I felt no power imbalance, as is often noted when researchers interview an elite group (Smith 2006; Mikecz 2012). The Inns of Court, chambers environment and courtrooms were all familiar territory, causing no in-the-field anxiety. All, save one, were happy to be audio-recorded during interviews, releasing me from manic note taking and giving the exchanges a more conversational flavour. My pre-existing knowledge meant that interviews elicited richer material, beyond stock answers and window dressing, and I was able to challenge responses that seemed too glib or superficial.

But there were drawbacks too. I was sometimes less detached than an independent researcher and had to guard against a tendency to be over-sympathetic. It was difficult not to bristle at the ‘fat cat’ portrayals that were appearing in the press and to over-identify with the challenges some practitioners faced. What surprised me was just how socialised I had remained after 20 years. It seems that once a barrister, always a barrister. However, my insider status was fluid. Some changes were so great they were completely beyond my experience, so there was an ongoing dynamic of refamiliarisation, de-familiarisation and re-assessment of what I thought I knew. I found myself making mistaken assumptions because I thought I understood the terrain. Below are a couple of examples (there were more) of how this impacted on my line of questioning in some of the interviews.

A.Interview Extract 1

Barrister: I’ve not had a brief from chambers this century and probably 10 years before that. I mean I’ve always made my own work.

AG: Do most people, after a certain level, generate their own work?

Barrister: I would say so, if they’re being successful.

AG: So your new work is coming from your connections and relationships with solicitors, rather than the clerks drumming up new business for you?

Barrister: Yes, absolutely.

Later in the interview, I discovered that this participant generated work by publishing a book, going to conferences, chairing a specialist committee on the Bar Council and speaking on panels. Barristers are allowed to be far more proactive, enterprising and inventive in their search for new custom since my time. My leading question was not just very bad interviewing technique, but reveals mistaken suppositions. In a subsequent interview, I remedied this:

Barrister: I get all my own work.

AG: How do you get your work?

B.Interview Extract 2

AG: So the management committee does the daily stuff?

Barrister: Yes.

AG: But for the big decisions you will have a chambers meeting?

Barrister: Yes.

I assume I know the division of labour between committees and the distinction between what they do and what happens in a general chambers meeting. I do not ask what the ‘daily stuff’ consists of, but presume to know. It is very probable that it had changed considerably in 20 years. I transcribed each interview soon after the event, so was alerted to these basic mistakes. On a more prosaic level, I also misjudged more superficial matters. I dressed in black trousers and jacket for the interviews, thinking I would blend in. I was often over-dressed. Many barristers now wear casual clothes in chambers. Quite a few turned up in shorts or tracksuits and jumpers; one was in tennis whites. Further, I was concerned that participants would be reluctant to meet me in chambers, as it was almost unheard of for people to give interviews or participate in research studies whilst I was in practice. Aside from one, all invited me into their chambers, many introduced me to their clerks and colleagues and told them of my study. No one seemed remotely put out that I was researching the Bar, in contrast to suspicions noted by two previous ethnographers (Flood 1981; Rogers 2010).

III.Observation

The interviews were complemented by ethnographic observation during multiple visits to chambers and courts, as well as attendance at formal and informal Bar events. The periods of observation were varied and included: one week shadowing a criminal barrister, eating on numerous occasions as a guest in hall in the Inns, attending an annual Bar conference and an advocacy instructors’ training session in the Inner Temple, repeated marshalling at the Crown Court and other varied court visits, as well as attending a legal aid consultation meeting between barristers and MOJ representatives, a legal aid protest meeting in Lincoln’s Inn and both strike action days in January and March 2014. Many interviewees gave me physical tours of their chambers: the clerks’ and support staff rooms, meeting/conference/hot desk areas and their own rooms. On four occasions, I spent full days in different sets, interviewing, chatting informally and observing. The most sustained period was when I shadowed a circuit criminal barrister for a week. I stayed with him and his family, commuted to court and chambers with him, inhabited his workplace and watched him work at home in the evenings and early mornings. I shadowed him in the robing rooms and at court. In all these locations, he introduced me to other barristers, to solicitors and Crown Prosecution Service (CPS) lawyers, as well as to the judges hearing the cases, explained what I was doing and why I was there. I read the briefs, listened to him talk about cases, sat behind him in court and had to make a conscious effort not to take notes of evidence as if I were his junior or pupil.

IV.Research Context: A Period of Crisis

Just as the research began, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force, reducing the scope and amount of public funding for a wide range of civil, family and tribunal cases. All of the first part of the fieldwork took place during the heated dispute between the Bar and the MOJ over the proposed and actual reforms and cuts to legal aid in criminal and public law cases, introduced in a consultation paper Transforming Legal Aid in April 2013. The interviews were carried out in what was (and is still) perceived to be a time of unprecedented crisis for parts of the profession and in some cases participants were upset, angry and worried about their income levels and the general state of the Bar as they saw it. This was especially so in the case of publicly funded practitioners. During the research period, almost a third of the participants moved chambers, some more than once. Some left the profession altogether. One set of chambers, which I observed and interviewed members of, dissolved completely. These were, for some, very stressful and emotional times, yet the participants were still willing to be interviewed and talk about these dramatic changes in their professional lives, the ramifications of which were obviously inextricably linked to their personal lives. Whilst I was in some ways familiar with aspects of barristers’ working lives, this kind of uncertainty and unhappiness had not been part of my experience. Many spoke fondly of the era when I had been in practice, when work was plentiful and well remunerated, and told me that I was lucky to have left when I did. Perhaps not surprisingly, I felt that the profession had become more politicised and its members more self-aware of their relationship with the outside world and how the Bar was perceived. There is very little research on the emotional response of professionals to changes in their working lives (for doctors’ reactions to change, see McDonald et al (2006); Watt et al (2008)). Although the performance of and fees charged by barristers are under constant scrutiny and the profession has undergone significant reforms, there is very little understanding of what and how practitioners feel about them.

V.Theoretical Framing of the Legal Profession

This research was influenced by existing theorising about how professions develop and evolve, what constitutes professionalism, how professional culture and ideology develop and how neoliberal practices are reshaping professional life. It draws mainly on the Anglo-American-centred literature because of the very different nature of Continental professional development. The latter involved far greater state involvement and lacked the relative independence of professionals from market and hierarchical pressures, a feature prominent in Anglo-American modes of professionalism (Kritzer 1999; Muzio and Kirkpatrick 2011). With regard to theorising the triggers of change, this study’s analysis draws, inter alia, on the work of Andrew Abbott (1988), whose focus is on the jurisdictional battles between professions over control of particular areas of work, which he sees as central to understanding professional development and organisational change. However, the Bar has to be seen in the wider political and economic world in which lawyers operate and in the context of technological advances that have reshaped practitioners’ working lives. Thus, a broader literature and set of perspectives has also been considered to test its applicability and relevance to the Bar. There has been much debate on the general causes and effects of neoliberal practices on professional life (eg, Miller and Rose 1990; Arthurs and Kreklewich 1996; Rose 1999; Dent and Whitehead 2002; Clarke 2004; Peck 2008, 2010; Gane 2012; Reed 2018). The thinking underlying this study draws mainly on such literature that focuses on the changing nature of professionalism (eg, Freidson 2001; Evetts 2011, 2012, 2013, 2015; Muzio and Kirkpatrick 2011), in the context of the legal profession in particular (eg, Abel 1986, 1987, 1988, 2004a; Sommerlad 1995, 2007, 2011; Paterson 1996; Flood 1996; Hanlon 1997; Flood et al 1998; Kritzer 1999; Muzio 2004; Boon et al 2005; Ackroyd and Muzio 2007; Boon 2010; Muzio and Flood 2012).

VI.Early Perspectives

Two main sociological conceptualisations of professions were first developed in the early part of the twentieth century. Carr-Saunders and Wilson (1933) and Parsons (1939), inspired by Durkheim, are examples of those who took a structural functionalist approach, linking the professions with social structure and the division of labour, highlighting the traits and positive functions and achievements of occupational groups. Their interpretation is that professions are organised groups of experts who have undertaken elaborate training to acquire esoteric knowledge, which they apply in a manner that is shaped and guided by codes of behaviour to ensure ethical practice. These are moral communities, self-regulating and collegiate, with uniform interests, whose function is to serve and mediate between the needs of the individual and state power. Their cultures are strong and essential in order to socialise new recruits into uniform ways of working, impose ethical norms and maintain legitimacy. Critical studies from the 1960s onwards debunked this approach, claiming it unquestioningly followed professionals’ ideology, which presented an altruistic, public service image. Instead, these later studies focused on professions’ exercise of power to gain market monopolies and control over who entered their ranks (Johnson 1972; Larson 1977; Abel 1986, 1987, 1988). This ‘power literature’ was less interested in what professionals actually did and the expertise used to do it, and focused more on the structures used to control and extort rents (Abbott 1988). Many of these studies were theoretical, with little empirical examination, and took a largely critical view of professional groups, focusing mainly on self-interested motivations and distinct professional ideologies, which were very resistant to fundamental change (Saks 2012). Not all agreed. Lamenting the assaults on professions, which frame monopoly and social closure as modes of domination and exploitation, Freidson (2001) draws attention to the fact that they are, instead, mechanisms for supporting growth and refinement of disciplines and the quality of their application. This book explores the Bar’s professional ideology in later chapters and, whilst not seeking to prefer any particular perspective, is interested in exploring how barristers themselves perceive their culture and why it affects their decisions, before then critically interrogating its nature and extent of uniformity, and whether it has been eroded and/or reshaped in the last three decades of change.

The second method of conceptualising the professions arose from the Chicago School of ...