There’s an air of disappointment in the Director of the BSB, Vanessa Davies’s foreword to its latest research on the Bar’s attitudes to “delivery models” (that is, the entities in which they practise).
Anyone knowing the Bar won’t be surprised that, overwhelmingly, respondents don’t see any need for change to their delivery models or that there’s a slight air of complacency about their approach. Even so, you sense slight desperation as Davies enumerates the things that ought to make them less complacent – “The UK leaving the European Union, reform in the Courts and Tribunals service and the issues of unmet legal need and the lack of consumer understanding of the legal services market, which were highlighted in the Competition and Markets Authority’s (CMA) recent study of legal services – published after this survey had taken place – represent challenges for us all to meet.”
Offhand, I can’t see what impact Brexit or reform to the courts service will have on delivery models but the comment about unmet legal need is revealing. One of the great assumptions about ABS was that the additional freedom of who you could work with and the additional investment available would enable the market to address problems of access to justice by providing more competitive and accessible legal services. I’m not aware of anything that suggests this is actually happening and, insofar as it’s the BSB’s remit to address this question, one can perhaps understand why there’s a sense of “where do we go from here?” in Dr Davies’s words.
Essentially the research shows:
- The overwhelming majority of barristers deliver their services through chambers – other methods are outliers;
- Barristers don’t see any need for wholesale immediate change in business models – less than 10% intend anything heavy in the next year or so;
- Most of them are adapting to client demand and new technology and have a flexible approach to fees;
- New entities are likely to be more flexible than older ones but there’s not much in it;
- They have an, understandable, suspicion of outsourcing;
- ABS is an “enabler” of change but nobody particularly wants to change;
- They don’t expect to change their marketing strategies any time soon.
No surprises here. The research base was entirely of existing suppliers and 53% of them had been operating for more than 20 years: you’d expect them to be happy the way they are.
There has never been any doubt that the Chambers business model is a very suitable one for successful barristers – relatively low overheads, they can concentrate on their specialisms with no need to worry about conflicts and they leave the boring stuff to solicitors or the lay client. There’s never been much demand at the Bar to change it: the arguments for ABS have never come from people actually supplying the services.
Many findings chime with my experience in my current role as a purchaser of barristers’ services. They are increasingly client focused. Most Chambers will provide fee arrangements that suit their regular clients, they will be flexible about when and how you meet and how quickly you need advice and, indeed, the sort of work they will do. According to the report, this would even extend to the “if you need a bunch of paralegals, we’ll get them for you”, which would have been unheard of ten years ago (though one or two of the forward-thinking Chambers fantasised about it). It shows suppliers in tune with their market.
Unmet legal need?
But it’s a limited market and, while the report talks about “unmet legal need” as a challenge, the discussion, if it can even be called that, is pretty naïve and low level. There’s a suggestion that SMEs and individuals do not use legal services as much as they could but little in the way of ideas of how that could be addressed. There’s a nod in the direction of working with accountants (though noting that the BSB doesn’t regulate such entities) and a suggestion that local authorities may be a source of work all of which suggests a very limited understanding by the respondents (and, indeed, the researchers) of the legal services market. At one point the report has to qualify some comments by pointing out that these were the views of the supplier based, untested on the actual market itself.
So there is nothing to suggest that the Bar recognises unmet legal need as its problem (though a respectable number of them do pro bono work – even if the amount isn’t stated) and, that apart, I see no appetite to make their services more affordable.
Transparency of fees is also mentioned in Davies’s foreword and research does suggest that uncertainty about cost is a major factor in people not using lawyers. Requiring publication of fee rates may not be the answer, particularly if this simply confirms that the fees are more than people want to pay. And what’s the point of an hourly rate if you don’t know how long the work is going to take? Moreover, the research here suggests that fixed fee arrangements were problematic because it might lead either to over- or under-charging. This may be because Chambers simply aren’t used to working out sensible “swings and roundabouts” fixed rates for bulk or standard work, but there is also a good deal of non-standard work at the Bar.
The Bar (and, indeed, solicitors) can be very flexible indeed about pricing when dealing with interesting work and regular clients but most people falling into the “unmet need” category probably don’t have the sophistication to tap into this. So transparency of pricing may be objectively a “good thing” but whether it will actually lead more people to use legal services debatable.
There’s little discussion about the extent of the work that barristers do, which I found surprising. Barristers generally limit themselves to advisory work and advocacy, avoiding the high risk activities and, as a result regulatory and insurance costs are lower. It also left the boring transactional stuff to solicitors. There’s now a lot more flexibility about this and it would have been interesting to see whether respondents felt any urge to move into areas more traditionally done by solicitors – if only because it takes them closer to their clients and aren’t at the mercy of solicitors for the instructions they receive. I am pretty sure that we can infer that answer is likely to be that the appetite is limited but it’s interesting that it doesn’t appear to be on the radar.
So, if it’s expecting the market to respond to unmet legal need, the BSB seems to be looking in the wrong part of it.
However, it seems to me that we need a much more sophisticated debate about unmet legal need and what this means. I’ve no doubt that there are many situations in life where a bit of legal advice would be appropriate or useful but it may not be the end of the world if you don’t get it. Most of us have things we would rather do with our money than spend it on lawyers and the LSB’s research tends to show SMEs at least using a number of cheaper options than lawyers. I don’t blame them for this.
And is it really the BSB’s role to encourage access to justice? How far can a regulator of commercial entities, in an environment where people are free to choose what work they do, serious expect to solve the problems of ignorance and lack of money that are all part of the problem?
It can’t solve it, but there are two areas where it might want to look. First, it might want to cross check the suppliers’ assumptions with potential users: not those of us are used to it and work with Chambers, but those people who are intimidated at the thought of using a barrister. Whether those it regulates will care, is another question.
And might it not also look at people other than the existing supply base? Each year nearly 2000 people qualify as barristers but less than 500 go on get a pupillage. Might increased supply reduce price and find more innovative ways of solving the problem? Possibly, though you would need to get the infrastructure right to support them and ensure that they have the competence to do the work. Or would they simply find that there wasn’t the market to make the living they want and go off to do something else? But it seems to me that a far greater catalyst for change than ABS would be a thorough, open-minded view of the qualification and practising rules.
So the research provides an interesting snapshot of a group of suppliers being successful on their own terms and comfortable with its position in its existing market. If you’re looking for something which seriously addresses unmet legal need, these aren’t the people who are going to provide it. The research shows the extent of the task.