Thursday, 27 August 2015

The Butcher, the Baker and the Barrister: The way things were they will not be.

In July of this year an exceptionally fine pair of candlesticks called the Cremorne Candelabra sold at Christie’s for just under a million pounds.  Manufactured by John Wakelin and William Taylor in 1790 those two craftsman could not have imagined that 225 years later these objects would be valued solely for their form and not at all for their function.  There were three men in the tub in the nursery rhyme but the candlestick maker was long ago consigned to oblivion by the unforgiving and uncaring march of progress and technology.  A question well worth pondering is whether the barrister is destined to go the same way.
Absolutely rightly the ever more agonised negotiations between the legal professions and the Ministry of Justice have focussed on public money and the sufficiency of its supply in order to guarantee the proper functioning of the justice system.  Lawyers insist that the tipping point is long since past whereby inadequate funding means justice simply can’t and won’t be done.  Civil servants and politicians on the other hand hope and believe that more cuts can be made while keeping some semblance of a justice show on the road.  If scandal, media and public outrage can be avoided then the axe can keep on falling regardless of the real consequences.
However this piece is not about money and the need for more of it to keep justice alive.  That goes without saying and I have said it before, repeatedly.  Instead this is about change, the change we see, the change we ignore, the change we embrace and the change we fear.  It is a remarkable paradox that almost all politicians stand on change platforms when running for public office and yet within our private lives change is so often alarming and threatening.  What of course politicians are really selling is a belief in beneficial change, not disconcerting and uncomfortable disruption.  However this ignores that almost all change, whether for good or ill, involves a period of unsettling destabilisation.  Better the devil you know is the unconscious mantra for many, many people.
Every barrister in England & Wales must belong to an Inn of Court.  Only four remain, geographically concentrated they cherish their unique identities and traditions but to an outsider they are identical repositories of Hogwartian ritual and arcanum.  This connectedness to the past is comforting to many barristers whose day jobs may involve far too complete an immersion in the horrors of the modern world.  But even stupefied by the Port at the end of an Inn dinner it is impossible to ignore that pressures are being exerted on the Bar and the Inns that are far greater than whether Michael Gove will relent on two tier contracts.
I am amongst the last generation of barristers that, like barristers since the dawn of the Bar, undertook legal research in libraries.  As a pupil in 2004 I vividly recall queues for the photocopiers and strict instructions about magnification and not cutting off margins and page numbers.  Finding a case on point was a test of resourcefulness and diligence.  Yet now in 2015 Inner Temple is the first Inn to go public with its admission that library usage has plummeted.  Plans are afoot to reduce the library’s size and convert the space into revenue generating meeting rooms. Not surprisingly this has angered and dismayed a number of barristers who recoil at any encroachment on the Inn's learning heart.
Now legal research is so easily achieved via online databases that the Court of Appeal has had to enjoin lawyers not to inundate judges with every case ever heard on a particular point.  A very obvious consequence of the diminishing importance of the Inns’ libraries is that the necessity for the proximity of barristers’ chambers to the Inns is over.  How long will tradition impel barristers to feel that they must pay over the odds for the prestige of a Holborn address?
The concept of a virtual chambers is already well established, a more interesting question is how long bricks and mortar will endure.  The hard copy law reports in my chambers long ago stopped being an essential resource and instead became immensely expensive wallpaper.  Other self-employed tradespeople like plumbers do not clock off at the end of the day and return to a building full of other plumbers.  Why will barristers continue to do this when a chambers is just a seriously expensive place to store pointless paper briefs and conduct meetings?
Of course the pooling of expertise and the training and apprenticeship provided by pupillage is not something that will ever be replicated in any meaningful way virtually but the changes to our working practices, embraced or not, may inexorably lead to a dissolution of the camaraderie and fellowship provided by chambers.
Technology has long ago moved on from the manufacturing industries and made encroachments into the services.  Algorithms underlie most of the trading on the world’s stock markets.  Only the doltish or the naïve could assume that legal services will enjoy any immunity from this process. 
Of reassurance to barristers though is the fact that as long as oral advocates are called for it will be a long time before machines and computers are advanced enough to take over.  If barristers wish to thrive though they need to ensure that they are as unencumbered as possible.  Buildings, staff and administration are all expensive; are they necessary?  A principal virtue of self-employment should be nimbleness and agility.  If barristers voluntarily weigh themselves down they can only blame themselves when they sink not swim. 
By way of contrast the modern world poses a real threat to the traditional work of solicitors.  Competent and literate clients are capable of drafting their own statements, gathering their own evidence and even serving their own documents.  The importance of the ‘paperwork’ side of legal practice as a professional specialism is diminishing every day.  As long as oral advocacy remains a feature of the justice system the importance of the ‘talking’ side will be preserved.  When the tools of your trade are your mouth and your brain why are you paying through the nose to imprison them in a fancy building in the Temple?
I am old enough but still young enough to share the anxieties of the leaders of the Bar while feeling those of pupils.  The coming death of the Bar has been coming for a very long time and, truth be told, will carry on coming for many more years.  Young barristers are resilient and resourceful; they know the Bar they will practise at may not, should not even, look anything like that which Silks know and love.
The next decade will see some very significant changes.  I predict that the Advocacy Training Council will become a very much more powerful organisation and if the Inns are to maintain their traditional role as gatekeepers to oral advocacy they will have to consider opening their doors to all advocates whatever their job title.
Like the Cremorne Candelabra if the Bar wants to avoid becoming no more than an expensive and decorative antique it will constantly have to reassert that its function is vital.  I am cautiously optimistic that it will succeed and, thankfully, you can't put a wig on a computer.


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  3. Blast! Final attempt:

    Max makes a compelling argument. I often wonder - when I am travelling past the Inns on a bus - why barristers put up with gifting so much of their fees to Chambers in rent, and whether the fancy buildings are really necessary or affordable for legal aid lawyers. Legal aid barristers will need to migrate to an on-line presence (virtual chambers) to remain viable in the longer term. However, if Max thinks that all solicitors do shuffle papers I would like to invite him to do a 'mini' at my grimy office in east London and join me at the police station in the middle of the night or on Xmas day.