Downturn fuels a boom in the direct instruction of barristers

I LIKE the culture of barristers’ chambers. The idea of walking into an aircraft hangar reception area at some City firm with modern art on the wall is maybe flaunting wealth too much these days.” This was the view of one in-house lawyer interviewed for a new study into “direct access” – clients instructing barristers directly as opposed to via a solicitor – published this week and which reveals an exponential increase in the number of direct instructions since the economic downturn.

According to a new poll, almost a third of senior in-house counsel and company secretaries said they had instructed a barrister directly in the last two years (32 per cent) – doubling the number in a 2008 study (15 per cent) which, in turn, doubled the figures recorded in 2006 (6 per cent). All three studies were commissioned by the barristers’ chambers Hardwicke.

“Direct access is still in its infancy but, since we commissioned our last research in 2008, there has been a significant step-change in the approach of corporate counsel to the Bar,” says Hardwicke chief executive Ann Buxton. This year’s study was done by research company Jures. “The stresses of the economic climate and the increasing profile of the procurement officer have created a new set of pressures for those in legal services,” says Buxton. “Solicitors and barristers can work together to provide a seamless service to clients.”

It was only six years ago that the Bar Council scrapped the centuries-old rule that litigants who want to instruct a barrister had to go through a solicitor, following pressure from the Office of Fair Trading. “Traditionally solicitors referred work to barristers,” Buxton explains. “Under ‘direct access’ this has now changed so that barristers may more frequently be the first point of contact for clients.”

Corporate Britain’s relationship with its lawyers has gone through a radical change and the increasing use of direct access is a feature of that. So, for example, when Orange and T-Mobile announced their review of law firms in July in the wake of their merger to become Everything Everywhere they included barristers’ chambers alongside law firms. “We have had success instructing directly to the Bar in the past and would be keen to continue working in this way with the larger group of internal lawyers,” general counsel James Blendis was reported to have said.

In the Hardwicke/Jures study, barristers were perceived by a slim majority (55 per cent) to be offering better value for money. “In the past when we have had a major piece of litigation which required counsel to be engaged, we would instruct external solicitors to instruct counsel. This would mean that you ended up paying the solicitors to summarise your file, photocopy your paperwork and put it all in a nice ring binder,” comments Sapna Bedi FitzGerald, past chair of the Commerce & Industry Group and general counsel at LSL Property Services plc. “Whereas now, we realise we can instruct the Bar directly. The Bar offers an alternative.”

RECENT INNOVATION
Paul Gilbert is a former in-house lawyer and chief executive of the LBC Wise Counsel consultancy. As a consultant, he has conducted in the region of 45 law firm panel reviews for companies over the last two years. The relatively recent innovation of panel reviews is a response to the demand for greater transparency and accountability in the relationships between general counsel and external lawyers. “In the last 12 months, we have started suggesting to general counsel that as part of their panel arrangements, they either allow for the opportunity to go to the Bar direct or they actually look at the appointing barristers’ chambers for direct access purposes,” comments Gilbert.

The Hardwicke/Jures survey indicated a striking surge in confidence among corporate counsel with almost nine out of 10 (87 per cent) believing that they had a sufficient grasp of the issues so as to be able to instruct barristers directly, more than doubling the 2008 finding of four out of 10 (40 per cent). The research also examined commonly perceived barriers to instructing barristers directly (such as, lack of clarity over fees; clerking structure; not being “user-friendly”; and not offering a full range of legal services). Almost two-thirds (63 per cent) did not see the clerking structure of barristers’ chambers a barrier (compared to 29 per cent in 2006) – still, more than half of respondents (53 per cent) agreed to some extent that the Bar was not “user-friendly”.

The study also looked into business perceptions of the bar’s rather fusty image. For example, six out of 10 respondents (60 per cent) disagreed with the image of barristers being out of touch with the commercial world. Two thirds of respondents (66 per cent) disagreed with the description of the Bar as “unapproachable”. “It is nice to see that the old stereotypes about barristers being ‘stuffy’ and ‘Rumpole-esque’ going,” says Buxton. “We are a modern client-focused business... and that's what our clients want us to be.”

Jon Robins is director of the legal research company Jures (www.jures.co.uk). To find out more about the report Direct Access to Barristers: a Survey of Market Views and Needs go to www.hardwicke.co.uk