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‘If you expect nothing from anybody, you’re never disappointed.’
Sylvia Plath
‘Gotta keep those lovin’ good vibrations a-happenin’…'
Brian D Wilson and Mike E Love
If you search the internet for famous quotations on expectation, all the motivational stuff starts with a Plath-like supplication to improve your life by not expecting much of others; such folk are clearly not the norm as solicitors seeking to instruct counsel, either pre- or post-pandemic. The principal advice to all barristers and chambers will always be to follow instead the inspiration of the Beach Boys, because not only will the client rightly have high expectations but you’ve got to work hard to ensure client satisfaction and maintain your excitations of repeat instructions.
Intrigued as to whether the strictures imposed by the COVID lockdowns and the worsening economic environment had in any way changed what solicitors were seeking from barristers and chambers, I asked some questions on specific topics of several sets and was pleased to receive a good number of replies. There is still a disappointing, somewhat inexplicable tendency for some chambers to think that commenting on any aspect of their interaction with clients would be somehow to divulge the secrets of the Dark Arts, but I am grateful to those more enlightened souls, and, together, we might chip away at the others in order to improve the overall service the Bar provides to its clients.
The next stage of this exploration would be, naturally, to ask the solicitors themselves how they think their expectations might have changed. I would hope that most sets have asked this question already of their clients, as it really is one of the fundamentals of managing the client relationship. I suspect, though, that the considerable majority have not, as managing this relationship still tends to be a far less explicit, less structured process, other than in a few notable sets who have invested specifically in a business function that would be regarded as essential in other parts of the professional-services sector. (Ask whoever is responsible for marketing or business development in your chambers where the proactive management of client relations is explained within their strategy.)
The first and most obvious question asked, given the economic situation, was whether the demands for ‘value for money’ had increased. The answer was, pleasingly, a resounding ‘no more than before’. Solicitors will always seek the fine balance of the required expertise for the right price, and that hasn’t changed. Chambers are all aware that they operate in an increasingly competitive market and that, with an increase in remote hearings in a few areas of practice, the competition has grown geographically. Some chambers reported an occasional tendency for fees to take longer to be settled, though, which led to the next question on contractual terms.
All chambers will be familiar with the need to deal with their instructing solicitors according to the relationship that has been built up over time, which will in most cases be a collaborative approach. There is some evidence of law firms increasingly insisting on terms similar to ‘COMBAR B’, ie ‘the barrister gets paid when we do’, but the Bar’s standard terms still tend to be used widely in many areas of practice. In general, the Bar has always accepted far higher ‘debtor days’ and unsecured fees than most businesses, and it will be interesting to see how some chambers approach this clear risk to cash flow in the future.
At the moment, there is no widespread increase in chambers requiring solicitors to hold barristers’ fees on account, though this is now the general practice in a few sets and will often be the case if the lay client’s assets are uncertain or, dare it be said, the law firm has a history as a bad debtor. It is, though, more generally accepted that there is a greater need for clerks and the solicitor to have more detailed discussions at the outset of the lay client’s ability to pay, and solicitors seem perfectly content to have these discussions – it is, of course, something they will have already assessed internally.
In both commercial and civil practice, there are more reports of solicitors sometimes seeking ‘senior junior’ counsel rather than King’s Counsel – the costs are obviously lower, if the junior barrister has the expertise. This cannot be surprising, but, if the practice becomes more widespread, it will further bring into question for some practitioners the desire to take silk, given the frequently feared dip in business that might come immediately after shaking hands with the Lord Chancellor and before properly developing a silk’s practice, as well as the high one-off cost (for those in some areas of law) of the whole KC process.
More of a general sign of the times rather than a result of the pandemic is the growing number of larger firms and some boutique firms which are quizzing chambers on their environmental, societal and governance impact. This is also apparent in tenders and large-volume purchasers. (Some local authorities, in addition to seeking the customary training support, case surgeries and legal updates, are now asking for support in their own social mobility activities in the community.) So far, all of this is always secondary to the perceived quality of the barrister and chambers and the cost, but it is certainly an emerging trend. To what extent this could be classed as ‘greenwashing’ in some instances cannot be assessed, but if the continuity of instructions might be jeopardised unless chambers adhere explicitly to environmental credentials similar to the firm’s, then there will be little choice but to follow or lose the client. It would be hoped that all chambers already follow meaningful policies for equality, diversity and inclusion.
It is worrying to hear that there are still isolated requests from some solicitors for a female barrister or one of a specific ethnicity because it’s perceived that’s what the lay client wants or ‘would be best’ for the case. What is not known is how many chambers would still agree to this – those sets wouldn’t be the ones to mention it.
It would be interesting to study separately the development of public access (PA) work. From my survey, there was no indication of an increase in this work, but there are clearly more barristers qualified for PA. Anecdotally, barristers are becoming more selective with what they take on and many have come to value the welcome buffer that a solicitor usually provides between them and the lay client. PA undoubtedly has an important part to play in providing legal services but, like all other forms of legal advice and representation, only in the right circumstances. It is also essential for the clerks’ room to be properly resourced and trained to handle the demands of PA clients.
While there does not appear to be an increase in the number of complaints received overall by chambers, it is noticeable that, for those sets with PA practitioners, PA clients have a slightly greater tendency to complain about counsel than those who instruct solicitors. This should not be a surprise, and nor should we get the subject of complaints out of proportion; the number of complaints received by chambers are a tiny proportion of the total caseload and chambers are required to have an appropriate procedure for handling them. The fact that a client has the right to take a complaint to the Legal Ombudsman (albeit this inalienable right is sometimes frustrating for chambers), regardless of the findings of the chambers’ investigation, means that chambers will almost certainly be assiduous in their complaints process. The principal nature of complaints from lay clients continues to be (it is claimed) that ‘I’d have won if my barrister had done better, so I don’t want to pay.’ There is a very small number of solicitors who seemingly try to reduce counsel’s fees by complaining about the service when they have themselves had to take a hit on their own fees. We should not be afraid of speaking out about such instances, at the same time as accepting fully when the service to the professional or lay client has not been what it should have. Properly managing complaints as quickly as possible can preserve business and be viewed very positively.
Unsurprisingly, many solicitors have continued to see advantages in remote conferences with their barrister and this is a definite benefit, on balance, from the pandemic. It will often be the case that when solicitors are with their lay client it is preferable to have at least the first meeting in person, but the flexibility provided and the time saved by the alternative of remote conferences represent something that all chambers have invested considerably in over the last three years. We are still some way away from identifying what is the optimum solution for remote and in-person working with clients, in the same way as chambers and law firms are for producing the right mix of being in the office and WFH. The adoption and understanding of technology will influence this significantly and it must be said that the Bar does not have a great record of developing and implementing tech solutions. The take-up of technology by the courts has been erratic, both in the provision of reliable hardware and software and in the continued use of remote hearings. In early 2021, the Master of the Rolls made a number of speeches about the development and use of technology in civil justice; an undoubted tech enthusiast, Sir Geoffrey stressed he was realistic enough to know the ultimate goal was some way off. It would be fascinating to hear his update now, as there does not seem to have been a great deal of progress in the last two years in the properly joined-up implementation of effective technology or in the strictly risk-averse mindset of some of those involved in the judicial process.
Linked to the development and wider use of technology is the risk to cybersecurity. Although not addressed in my survey, this has emerged to be one of the overriding concerns of law firms about the barristers they instruct and their chambers. Despite some movement in the right direction, the Bar as a whole and as a profession has yet to address this adequately, given the nature of self-employed practitioners operating collectively in chambers, and there will continue to be much more emerging on this subject in the coming year.
So, has the pandemic changed what our solicitors expect? No, not really, though there are some slightly different ways of doing things, and expectations will always be influenced by the prevailing economic and societal changes. What does seem to be changing, and this is something that has been gestating for a good while, is the clear understanding of many chambers that you get substantial benefit from proactively managing your relationship with your clients and, for individual barristers, this means developing the critical element in that relationship of personal interaction and empathy. The expectations of having the right knowledge and expertise and delivering on time what you say you will and for the quoted fee are simply ‘givens’ – you need to be seen as part of the team to keep the good vibrations a-happenin’.
Robin Jackson is a consultant who has worked with barristers’ chambers and the wider legal sector since 2008, and is currently working with FOURTEEN, the specialist family-law set in London, as their chambers director. He was the co-chair of the LPMA and vice-chair of the Bar Council’s Bar Representation Committee, and chaired the Bar Council’s COVID-19 Working Group. He has provided training and advice in leadership and governance and has spoken on change management at the Bar Conference. Prior to working for the Bar, Robin held senior operations-management roles in professional-services companies and had several years’ experience in policy and strategy roles working with government departments. He was also a soldier.
‘If you expect nothing from anybody, you’re never disappointed.’
Sylvia Plath
‘Gotta keep those lovin’ good vibrations a-happenin’…'
Brian D Wilson and Mike E Love
If you search the internet for famous quotations on expectation, all the motivational stuff starts with a Plath-like supplication to improve your life by not expecting much of others; such folk are clearly not the norm as solicitors seeking to instruct counsel, either pre- or post-pandemic. The principal advice to all barristers and chambers will always be to follow instead the inspiration of the Beach Boys, because not only will the client rightly have high expectations but you’ve got to work hard to ensure client satisfaction and maintain your excitations of repeat instructions.
Intrigued as to whether the strictures imposed by the COVID lockdowns and the worsening economic environment had in any way changed what solicitors were seeking from barristers and chambers, I asked some questions on specific topics of several sets and was pleased to receive a good number of replies. There is still a disappointing, somewhat inexplicable tendency for some chambers to think that commenting on any aspect of their interaction with clients would be somehow to divulge the secrets of the Dark Arts, but I am grateful to those more enlightened souls, and, together, we might chip away at the others in order to improve the overall service the Bar provides to its clients.
The next stage of this exploration would be, naturally, to ask the solicitors themselves how they think their expectations might have changed. I would hope that most sets have asked this question already of their clients, as it really is one of the fundamentals of managing the client relationship. I suspect, though, that the considerable majority have not, as managing this relationship still tends to be a far less explicit, less structured process, other than in a few notable sets who have invested specifically in a business function that would be regarded as essential in other parts of the professional-services sector. (Ask whoever is responsible for marketing or business development in your chambers where the proactive management of client relations is explained within their strategy.)
The first and most obvious question asked, given the economic situation, was whether the demands for ‘value for money’ had increased. The answer was, pleasingly, a resounding ‘no more than before’. Solicitors will always seek the fine balance of the required expertise for the right price, and that hasn’t changed. Chambers are all aware that they operate in an increasingly competitive market and that, with an increase in remote hearings in a few areas of practice, the competition has grown geographically. Some chambers reported an occasional tendency for fees to take longer to be settled, though, which led to the next question on contractual terms.
All chambers will be familiar with the need to deal with their instructing solicitors according to the relationship that has been built up over time, which will in most cases be a collaborative approach. There is some evidence of law firms increasingly insisting on terms similar to ‘COMBAR B’, ie ‘the barrister gets paid when we do’, but the Bar’s standard terms still tend to be used widely in many areas of practice. In general, the Bar has always accepted far higher ‘debtor days’ and unsecured fees than most businesses, and it will be interesting to see how some chambers approach this clear risk to cash flow in the future.
At the moment, there is no widespread increase in chambers requiring solicitors to hold barristers’ fees on account, though this is now the general practice in a few sets and will often be the case if the lay client’s assets are uncertain or, dare it be said, the law firm has a history as a bad debtor. It is, though, more generally accepted that there is a greater need for clerks and the solicitor to have more detailed discussions at the outset of the lay client’s ability to pay, and solicitors seem perfectly content to have these discussions – it is, of course, something they will have already assessed internally.
In both commercial and civil practice, there are more reports of solicitors sometimes seeking ‘senior junior’ counsel rather than King’s Counsel – the costs are obviously lower, if the junior barrister has the expertise. This cannot be surprising, but, if the practice becomes more widespread, it will further bring into question for some practitioners the desire to take silk, given the frequently feared dip in business that might come immediately after shaking hands with the Lord Chancellor and before properly developing a silk’s practice, as well as the high one-off cost (for those in some areas of law) of the whole KC process.
More of a general sign of the times rather than a result of the pandemic is the growing number of larger firms and some boutique firms which are quizzing chambers on their environmental, societal and governance impact. This is also apparent in tenders and large-volume purchasers. (Some local authorities, in addition to seeking the customary training support, case surgeries and legal updates, are now asking for support in their own social mobility activities in the community.) So far, all of this is always secondary to the perceived quality of the barrister and chambers and the cost, but it is certainly an emerging trend. To what extent this could be classed as ‘greenwashing’ in some instances cannot be assessed, but if the continuity of instructions might be jeopardised unless chambers adhere explicitly to environmental credentials similar to the firm’s, then there will be little choice but to follow or lose the client. It would be hoped that all chambers already follow meaningful policies for equality, diversity and inclusion.
It is worrying to hear that there are still isolated requests from some solicitors for a female barrister or one of a specific ethnicity because it’s perceived that’s what the lay client wants or ‘would be best’ for the case. What is not known is how many chambers would still agree to this – those sets wouldn’t be the ones to mention it.
It would be interesting to study separately the development of public access (PA) work. From my survey, there was no indication of an increase in this work, but there are clearly more barristers qualified for PA. Anecdotally, barristers are becoming more selective with what they take on and many have come to value the welcome buffer that a solicitor usually provides between them and the lay client. PA undoubtedly has an important part to play in providing legal services but, like all other forms of legal advice and representation, only in the right circumstances. It is also essential for the clerks’ room to be properly resourced and trained to handle the demands of PA clients.
While there does not appear to be an increase in the number of complaints received overall by chambers, it is noticeable that, for those sets with PA practitioners, PA clients have a slightly greater tendency to complain about counsel than those who instruct solicitors. This should not be a surprise, and nor should we get the subject of complaints out of proportion; the number of complaints received by chambers are a tiny proportion of the total caseload and chambers are required to have an appropriate procedure for handling them. The fact that a client has the right to take a complaint to the Legal Ombudsman (albeit this inalienable right is sometimes frustrating for chambers), regardless of the findings of the chambers’ investigation, means that chambers will almost certainly be assiduous in their complaints process. The principal nature of complaints from lay clients continues to be (it is claimed) that ‘I’d have won if my barrister had done better, so I don’t want to pay.’ There is a very small number of solicitors who seemingly try to reduce counsel’s fees by complaining about the service when they have themselves had to take a hit on their own fees. We should not be afraid of speaking out about such instances, at the same time as accepting fully when the service to the professional or lay client has not been what it should have. Properly managing complaints as quickly as possible can preserve business and be viewed very positively.
Unsurprisingly, many solicitors have continued to see advantages in remote conferences with their barrister and this is a definite benefit, on balance, from the pandemic. It will often be the case that when solicitors are with their lay client it is preferable to have at least the first meeting in person, but the flexibility provided and the time saved by the alternative of remote conferences represent something that all chambers have invested considerably in over the last three years. We are still some way away from identifying what is the optimum solution for remote and in-person working with clients, in the same way as chambers and law firms are for producing the right mix of being in the office and WFH. The adoption and understanding of technology will influence this significantly and it must be said that the Bar does not have a great record of developing and implementing tech solutions. The take-up of technology by the courts has been erratic, both in the provision of reliable hardware and software and in the continued use of remote hearings. In early 2021, the Master of the Rolls made a number of speeches about the development and use of technology in civil justice; an undoubted tech enthusiast, Sir Geoffrey stressed he was realistic enough to know the ultimate goal was some way off. It would be fascinating to hear his update now, as there does not seem to have been a great deal of progress in the last two years in the properly joined-up implementation of effective technology or in the strictly risk-averse mindset of some of those involved in the judicial process.
Linked to the development and wider use of technology is the risk to cybersecurity. Although not addressed in my survey, this has emerged to be one of the overriding concerns of law firms about the barristers they instruct and their chambers. Despite some movement in the right direction, the Bar as a whole and as a profession has yet to address this adequately, given the nature of self-employed practitioners operating collectively in chambers, and there will continue to be much more emerging on this subject in the coming year.
So, has the pandemic changed what our solicitors expect? No, not really, though there are some slightly different ways of doing things, and expectations will always be influenced by the prevailing economic and societal changes. What does seem to be changing, and this is something that has been gestating for a good while, is the clear understanding of many chambers that you get substantial benefit from proactively managing your relationship with your clients and, for individual barristers, this means developing the critical element in that relationship of personal interaction and empathy. The expectations of having the right knowledge and expertise and delivering on time what you say you will and for the quoted fee are simply ‘givens’ – you need to be seen as part of the team to keep the good vibrations a-happenin’.
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