Have barristers lulled themselves into a false sense of superiority?
The Legal Futures conference yesterday was refreshing in many respects. Hearing from people who are actually making the future of legal services is such a welcome change from the years I have spent talking about liberalisation of the market to, frankly, unreconstructed Luddites. But, and there is always a but, there was one keynote speaker who reminded me we are certainly not all there yet.
The opening remarks from Baroness Deech, chair of the Bar Standards Board (BSB), were a sterling defence of the importance of legal aid and the damage the government’s proposed cuts would do to access to justice. Unfortunately, she followed this with an equally sterling defence of the importance of the Bar that was forceful enough nearly to convince even the most fanatical moderniser things should stay as they are. It was all too easy to forget she is chair of the bar's regulator and not the chair of the Bar Council itself.
This blurring of roles was the catalyst for the very Legal Services Act, which required the professional bodies to split their representative and regulatory arms, that the Baroness seems so unhappy with. Earlier this month the BSB had gone so far to call for the Legal Services Board (LSB) to be abolished, attacking it for going beyond what it saw as its statutory role as an oversight regulator and accusing it of micromanaging and duplicating the work of the frontline regulators.
At the conference, Deech reiterated this view, saying Parliament had intended the LSB to be ‘light touch’. Having been involved in the debates at the time, I can confirm this was indeed the intention, but that it should be ‘light touch with teeth’ and able to intervene when frontline regulators, like the BSB, were not doing their jobs properly. So it probably needs to stick around for a bit.
It’s depressing, but not surprising that the BSB seems to be slipping back in time to when the Bar was just a nice, cosy, insular and exclusive place for barristers to slap each other on the back and make out they were better than everyone else, especially solicitors.
Exhibit two is the ‘research’ the BSB recently published which proved, according to Deech, that there was a high level of concern about advocacy competence in the criminal courts and that, naturally, this was due to solicitor advocates.
I am not going to go into detail here as to why this ‘research’ was fundamentally flawed and nowhere near the ‘robust evidence base’ Deech claimed, as Professor Richard Moorhead has done a pretty clinical demolition of it here. But it does indicate the BSB is heading in a worrying direction.
It also highlights a persistent problem in the legal profession: arrogance. As a non lawyer, I came across it time and again when I was campaigning for legal services reform and I still do. What I hadn’t properly appreciated until now is that this arrogance also exists between fellow legal professionals.
This reminds me of the wonderful ‘class sketch’ with John Cleese, Ronnie Barker and Ronnie Corbett in which Cleese, tall and patrician in appearance and demeanour, represents the upper class; Barker, of average height, the middle class; and Corbett, short in stature, the working class.
Barker: "I look up to him (Cleese) because he is upper class, but I look down on him (Corbett) because he is lower class".
Corbett: "I know my place".
It’s quite obvious the BSB, even though it should be dispassionate, views lawyers other than barristers as lesser professionals. Its clumsy attempts to discredit solicitor advocates and Baroness Deech’s sniffy retort at the Legal Futures conference that it would have no interest in regulating will writing are both testament to that.
Legal executives and licensed conveyancers suffer from the same snobbery, probably, I would rashly assume, mostly from solicitors. Chartered legal executive Barbara Hamilton-Bruce has written movingly about comments she has seen, and been directly on the receiving end of, denigrating her legal qualification as less academic, not rigorous enough for high-class law and fit only for ‘sausage making in some personal injury factory away from the cut and thrust of real law'.
She also points out that this one upmanship is not just between different branches of the profession, but between a whole range of differentiators: magic circle v every other commercial firm ever, barristers v solicitors advocates, solicitor judges v barrister judges, high street v new entrants, Oxbridge v red brick, law degree v conversion and so on.
What all this absurd navel gazing and infighting fails to recognise is that consumers, the ones who pay the bills, whether individuals or businesses, on the whole really don’t care. What they want is a competent professional with the right expertise to do the job that needs doing, and that could be a barrister, solicitor, legal executive or, god forbid, a professional will writer.
Equally important, getting so hung about status completely overlooks the fact that it will be consumers who decide who wins and who loses in the future legal services market. It will be they who decide if they like the new ways of accessing and paying for legal services. And it will be they who make the decision about quality, which may or may not correspond with that of the profession.
This may come as a shock: for too long lawyers of all types have had the arrogance to assume they know what is best for consumers. This attitude is, slowly, starting to change. The BSB does barristers a disservice to perpetuate the myth that they are special and separate from the rest of the legal profession, not least because that isn’t its role. Unless it is prepared to let them get down and dirty with the rest of the profession in a newly competitive legal market it may be that arrogance is its undoing.