In the spirit of the festive season, Jonathan Seitler QC and Miriam Seitler join forces this time to take on a very special guest: Secret Property Litigator.
Question: Do barristers have a place in the modern world?
NO
Secret Property Litigator, a well-known property litigator at a highly regarded firm
The Bar is well past its sell-by date. I have been asked to give five reasons why I believe this to be so.
1. Let’s face it, if you were designing a legal system from scratch, there is no way you would split the profession in the way it is divided. For one thing, it is bound to be inefficient, as two sets of people have to be assembled, co-ordinated and managed to fulfil a client’s purposes. Second, it is going to be more expensive: duplication costs, in terms of two sets of people having to master the same matters, are inevitable. And third, it creates confusion, even after all this time of having been in place: who is in charge? Who is leading the team? Which decision needs which part of the profession to deal with? All these doubts would just not arise in a fused profession.
2. The split is so very unnecessary. If there are practitioners who want to specialise in advocacy or who want to specialise in a narrow but important field, such as leasehold enfranchisement or adverse possession – and let there be no misunderstanding, I can see the value in that – they can come to law firms and we will support them to do that work. Firms need advocates and firms need specialists. What firms do not need, and what clients do not want, is to have that expertise hidden behind a barrier of over-protective clerks, opaque pricing structures and controlled accessibility. If I have an urgent Landlord and Tenant (Covenants) Act 1995 issue I do not want to be told by a chambers’ receptionist that the one person in the country who understands how section 25 works is “away from their desk” because they have decided to knock off early to go Christmas shopping.
3. Which brings me on to the clerking system. For whose benefit does the clerking system exist? I simply do not understand why practitioners, whether or not they regard themselves as elite practitioners, imbue others with such enormous powers over their diary, fees and indeed, whole careers. What’s going on here? I do not take instructions about what work I will do, for whom, at what price and by what date from my secretary, so why do barristers outsource all the key decisions surrounding their working life to others? It is simply not in the interest of the ultimate paying client.
4. This brings me to my biggest bugbear: brief fees. If anything in the legal system is obsolete, this is it. A fixed (usually substantial) sum for attendance at a hearing which becomes payable on an all-or-nothing basis at a fixed point and then is payable whether or not the hearing proceeds? Seriously? For whose benefit is this exactly? Every time a hearing doesn’t go ahead, for whatever reason, and a brief fee is incurred, it creates disillusion, bewilderment and not a little anger on behalf of my clients, who are then stung for it.
5. And there is one final thing. It sounds only a little thing, perhaps even a slightly vain thing, but take it from me, it’s not: it’s real and it’s regular and it’s mighty annoying, and it’s this: every time I have to go to a barrister, I feel a little prick of humiliation. Because the very act of doing it is an admission (if I have initiated it) or an allegation (if the client has) that I am not good enough, skilled enough, experienced enough or, worse, clever enough, to advise them myself. Every trip to the Temple or Lincoln’s Inn is another suggestion that, when it comes to the crunch, I am in the Second Division of lawyers. This is bad for me, bad for my profession and bad for business. Anyway, I am not in the Second Division. I am completely able to advise this client myself. If the Bar didn’t exist, nobody would have to invent it.
YES
Jonathan Seitler QC, barrister at Wilberforce Chambers, and Miriam Seitler, barrister at Landmark Chambers
We’ll take your points one by one.
1. Dad, I’ll take this one. We agree that if you were designing a legal system from scratch you might not incorporate a split profession, but you are not designing a legal system from scratch. This is the one that has evolved, and it has evolved in this way for a reason. For years, solicitors have had rights of audience in the High Court and for years barristers have been able to license themselves for direct access, but neither have taken off significantly. The thing speaks for itself. It is not a system, actually, which has been kept in place by restrictive, antiquated, protective legislation. All that was swept away in the 1980s. It must be being kept together by something much more fundamental.
2. Absolutely, I know exactly what that fundamental something is, Miriam – it’s economics. Secret Property Litigator’s breezy suggestion of specialists coming to work for them is stirring bravado, but of course it is commercial nonsense. Very few firms could support the employment of specialists in as many fields as it could possibly require expert specialist advice and, even if the biggest firms could, how would smaller firms then be able to access that advice? The Bar is a resource that enables firms of any size, and in any part of the country, to access the most experienced specialists at a cost – the Bar’s cost base is well below 20%, not least because the vast majority of barristers now manage all their own admin and IT – that, most law firms can only dream of. The Bar is a deep well of learning and experience that is available to all, on an equal basis.
3. I couldn’t agree more, Dad. Secret Property Litigator’s attitude towards clerks overlooks just why the Bar works so well in practice. The Bar is a place where self-employed practitioners, in a highly competitive environment, can practise law and advocacy. Not HR, not business, not handling client funds – but to concentrate on the part of a client’s matter that is going to be determinative in the last analysis, in a litigation context. You can sneer about this being “ivory tower”, but actually it’s just focusing on what needs to be done at the time at which maximum focus is necessary. The clerks are there to allow the barristers to get on with their job. It sounds like Secret Property Litigator would like to be able to do just that themselves. It’s a working environment that actually serves the client best. It allows the lawyer to make the law work for that client, rather than being distracted by all the diversions of a large, and multi-layered business; it allows the client to choose from a wide range of practitioners at varying levels of experience and price for the same job; and it gives a choice from a pool of highly driven people, who, because they are self-employed and therefore only eat when they can kill, have always gone the extra mile. The Bar is a place where half the people are handling twice the work they should, at a quarter of the cost it’s worth. There is nowhere more competitive, and the winner is the consumer of legal services.
4. Good point, Miriam. Brief fees reflect that same consideration. They enable barristers to do what just has to be done: turning away other work. Brief fees enable barristers to say to client B that, for the time in question that has been put aside, he or she is only working for client A. There are to be no competing demands: client A’s case comes first, comes foremost and is treated exclusively. If you want to win in court, you have to have a system that facilitates practitioners being able to turn away work to concentrate only on the task in hand. Isn’t this what any serious client with any serious dispute would want?
5. Secret Property Litigator, your feelings of humiliation are no doubt deep-felt and even painful, but they are not justified. Unless you have spent many years doing hearing after hearing, trial after trial, appeal after appeal, you have no need, when it comes to advocacy, to feel inferior to anyone who has been doing only that for all that time. It’s obvious that advocacy is something that one will always be learning in and therefore will always improve with experience. Feel free to take pleasure in each and every gap in our knowledge of property litigation. So too, each and every time we get knocked down in court: it is not you but us who must feel (more than) a prick of humiliation every time an impatient judge shouts “Oh Ms/Mr Seitler, stop banging on about that point!”
Happy Christmas, Secret Property Litigator!
Who wins the argument?
Last time, 78% agreed with Miriam that the FCA test case was not an important step on the road to Covid-19 being an occasion for rent cesser, but who will triumph this time? Vote online at: www.surveymonkey.co.uk/r/T57YPK5
