Barristers have long existed outside of chambers, but it is only in recent times that the employed Bar has gained a greater measure of recognition from the established profession.
For many years those who opted to move into commerce and join in-house departments were often regarded as second-class citizens, derided by their be-wigged colleagues as unable to ‘hack it’ in the profession.
Encouraged by legislation such as the Access to Justice Act 1999 and a more broad church approach by the Bar Council, employed barristers have gained new rights and official standing, after years of knocking on a largely closed door.
The act has forced through a number of changes, not least alterations to the profession’s code of conduct giving employed barristers higher rights of audience and the opportunity to offer pupillages in-house.
Susan Ward, chairwoman of the Employed Barristers’ Committee (EBC) and vice president of Bar Association for Finance, Commerce and Industry (Bacfi), believes a change of tone from the Bar Council, together with the change of government, has made the greatest difference.
She notes: “Without the Government being committed to reforming legal services it would not have happened. This was a Government that was prepared to push through changes in the teeth of great opposition.”
Ward admits that in recent years the Bar Council has been led by a series of chairmen keen to bring employed barristers further into the fold, but adds that enough conservative elements remain in the corridors of power to have prevented change without legislation.
Outgoing Bar Council chairman Roy Amlot QC admits that the Government provided the structure for change, which in turn had been embraced by the profession over the last couple of years.
He says: “There has been a large improvement, because we have made a real effort and have had some success in turning it into a single Bar.”
He acknowledges that past relations were not always so cordial: “Probably more than anything else, the independent Bar felt threatened; there was a fear that extending rights of audience and advocacy could be a threat to work.”
The chairman added that so far such fears have not been realised and certainly the Bar Council has thrown its weight behind advancing union.
Steps taken have included a more proportionate representation of the employed Bar’s 3,000 members on the Bar Council at all levels, prompted by the organisation’s internal inquiry, chaired by Lord Alexander of Weedon.
Last year the Bar Council established the EBC and the Inns of Court have set about organising structures and events to appeal to their members in the employed ranks.
Further evidence of this greater interest was given form with the publication last month of a survey of the employed Bar conducted by the EBC, chaired by Ward.
The importance employed barristers give such issues was reflected in the extremely high number of returns; replies were received from more than a third of all employed barristers.
The survey revealed a constituency that displays signs of diversity; 40% were revealed to be women and 13% were from the ethnic minorities.
Education and continuous professional development (CPD) came out in front as the areas in which members were most keen to see the EBC and Bar act upon. An overwhelming majority (57%) expressed the hope that the Bar and EBC should help with greater provision of CPD and advocacy training.
Ward explains why her colleagues are looking towards the Bar for a lead: “Most continuous education is provided by the Inns and the circuits.
“The problem for most employed barristers is that they are not involved with the circuits, which are largely crime-oriented, and also many are based outside London which is where the Inn courses are based.”
The results of the survey reveal that employed barristers see the Bar as the natural vehicle to fill this gap.
Certainly it appears such thinking has struck a chord months before the results of the survey were known, the Bar Council announced an educational initiative aimed at the employed Bar.
A taskforce was set up this summer to help increase training and education opportunities. The project is jointly run by Ward’s EBC committee and the education and training committee, led by Robin Purchase QC of 2 Harcourt Buildings.
The taskforce leader, Anthony Inglese, confirms that its work is still at a very embryonic stage with relevant organisations being contacted for pre-consultation.
In terms of issues of full rights of access to the courts, more than a third (34%) of those surveyed claim to have taken up rights of audience in the higher courts since the code of conduct changes came into effect in the summer of 2000 and around 30% wanted to apply for judicial appointments in the next three years.
Of those that have already applied, 32% have gained admittance to the Bench already.
These statistics hearten those such as Ward who have fought long and hard for such changes during Bar Council debates.
She notes: “At the time opponents claimed that employed barristers would not want rights of audience.”
All employed barristers are members of the Inns of Court, but often relations have been somewhat distant, to the point where more than a third of the survey (28%) call for the EBC to concentrate on developing relations with these ancient institutions.
No doubt respondents will be comforted to know that the Inns of Court are making concerted efforts to embrace their employed brethren.
Ward does believe that recently some of the greatest attempts to bridge the gap between two sides of the profession have come from the Inns of Court.
She claims: “The Inns themselves are faced with a different problem from the Bar Council. They have students joining them, a large number of whom will not join chambers but will go elsewhere. For them it is this rather than legislation that is the important factor.”
Certainly this view is reflected in the fact that already two of the four Inns, Lincoln’s and Gray’s, have held events aimed specifically at the needs of their employed members and similar events are in the pipeline at both Temple Inns.
The Inns and chambers have traditionally been the source for Bar education, but pupillage can now be conducted more freely at in-house legal departments than ever before.
Only 16 organisations have begun pupillage schemes so far, most of which are government bodies, such as the Crown Prosecution Service and Government Legal Service. Only three commercial companies have taken up the challenge to date: Abbey National Treasury Services, GlaxoSmithkline and AXA Sun Life.
And for those who fear talk of fusion between the two sides of the legal world, there must be some unease at the fact that two law firms, Hammond Suddards Edge and Cardiff firm Hugh James Ford Simey have taken up the pupillage banner.
It is clear acceptance of the employed Bar is still not universal, as witnessed by recent events at the North Eastern Circuit, where it has been proposed that membership should not be fully extended to those in the employed ranks.
Until last summer membership was open to all barristers, but at a meeting in July 2001, the circuit’s Grand Court in Newcastle voted to create a new associate membership category for employed barristers. The controversial motion was carried by 27 votes to 10, with seven abstentions.
It replaced an earlier proposal, tabled at the circuit’s executive committee meeting in February, that suggested restricting membership of the circuit to independent barristers only.
The argument still rages on, but there are signs that the opposition might not be as uniform as the argument appears.
Patrick Walker, Hammonds’ director of advocacy and a stalwart of the Leeds Bar, notes: “The public attitude of the North Eastern Circuit is not reflected by individual barristers who are in court with my barristers and I on a daily basis.”
Alongside this dark cloud sits another, namely the plight of non-practicing barristers (NPB) – those outside the employed or independent ranks, who have seen their status abolished by the Bar Council at a time when greater freedoms have been extended to others in the employed ranks.
Hammonds’ Walker has been involved in another initiative, aimed at giving more of a voice and a networking platform for barristers employed within law firms.
The City Solicitors’ Bar Group has been created by the Bar Council to represent barristers employed in solicitors’ firms. About 40 employed barristers attended the group’s inaugural meeting in October.
Membership is open to all barristers employed within solicitors’ firms
in the London area. The Bar Council plans to extend the scheme across the nation.
It is clear that, whether by government coercion or genuine enlightenment, the independent Bar has been making efforts to heal a long-festering sore within the profession.
The Inns’ reaction to employed barristers
Welcome signs have emerged from the Inns of Court, as overtures are made to members who ply their trade away from chambers.
Lincoln’s Inn and Gray’s Inn have helped push this process along with special dinners for employed barristers during recent months. Lincoln’s Inn held one in July and Gray’s Inn followed suit in November.
Lincoln’s Inn has also begun hosting a series of forums to address the needs of this section of its membership following July’s successful dinner.
Things were not ever thus – prominent employed barrister Stephen Bacon, head of legal at Express Newspapers and a Gray’s Inn member, notes that until recently they did not even appear on its mailing list and had no representation on its barristers’ committee.
Now Bacon is one of two employed members on that committee and the Inn confirms that following the success of November’s dinner it will become an annual event.
Bacon says: “There is still a ‘fuddy duddy’ element in the profession that thinks that if you work outside chambers you cannot be that good. But the general mood has changed and there is an appreciation that we can do as much for them as they can do for us.”
At Lincoln’s Inn, the under-treasurer David Hills admits that there has been a definite change in approach towards its employed members.
He says: “It was clear the Inn had not paid as much attention to the Employed Bar as it could have done.”
A change in attitude was prompted in part by the effects of the Access to Justice Act, which opened up the possibilities of pupillages outside of chambers.
As the Inns still run most of the advocacy courses that are a vital component of training, the new realities dictated that the Inn start talking to those in-house departments that wished to offer pupillage.
So it was that the necessity of education helped encourage dialogue with a constituency that had largely felt estranged.
One of those who has taken part in the initiative is Hammond Suddards Edge’s director of advocacy Patrick Walker.
He notes: “Lincoln’s Inn has been tremendously encouraging to employed barristers from all walks of life.”
The other Inns are also due to launch special initiatives for their employed members in the near future, so further confirming the new status of the Employed Bar.
